SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from

this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

NORTHERN CAPE DIVISION, KIMBERLEY

Case number: K/S 01/2017

Dates heard: 24-26/10/18; 07 -09/11/18;12-15/11/18; 20/11/18; 21/11/18 24-26/11/18; 10-13/12/2018; 24-26/04/2020; 10-14/06/19; 14/06/19; 29-31/07/2019; 01-08/08/19; 18-19/06/19;24-25/06/19; 15-16/08/19; 23/03/20

Date delivered: 11 - 12 May 2020

In the matter between: -

THE STATE

v

RICHARD HASANE First Accused

TSHAME FRANK BAXANE Second Accused

ZONIZELO RICHARD MAGAWU Third Accused

THOMPSON MNCEDISI MPHONDOMISA Fourth Accused

MATTHEUWS LEGODU Fifth Accused

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES /NO

2

JUDGMENT

Tlaletsi JP

Judgment

Introduction and charges

1. Accused number 1 is Richard Hasane, a 34-year-old adult male and a South

African citizen from house number [….], in the district of Kuruman.

2. Accused number 2 is Tshame Frank Baxane, a 32-year-old adult male and a

South African citizen from house number [….], in the district of Postmasburg.

3. Accused number 3 is Zonizelo Richard Magawu, a 37-year-old adult male

and a South African citizen from house number [….], in the district of

Postmasburg.

4. Accused number 4 is Thompson Mncedisi Mphondomisa, a 41-year-old adult

male, South African citizen from house number [….], in the district of

Postmasburg.

5. Accused number 5 is Matthews Legodu, a 49-year-old male, South African

citizen from house number [….] in the district of Postmasburg.

6. There was accused number 6, Paulus Mzeleni Mgcera who the charges

against him have been withdrawn. Reference will however be made to him in

the course of this judgment as his name came up from time to time in the

cause of this trial.

7. All five accused are appearing in this Court on five charges each. The first

two charges are murder, read with the provisions of section 51 of the

Criminal Law Amendment Act, 105 of 1997. The third charge is kidnapping

read with the provisions of section 51 of the Criminal Law Amendment Act.

The fourth charge is contravention of section 3(1) read with sections 1,

120(1) and 121 of the Firearms Control Act, 60 of 2000. The fifth charge is

3

contravention of section 90 read with sections 1, 120(1) and 121 of the

aforesaid Firearms Control Act.

8. As regards count 1, the State alleges that on or about the 17th of August

2016 at or near Postmasburg in the district of Postmasburg, the accused

unlawfully and intentionally killed Johannes Baaitjie, a male person. Count 2,

it is alleged that on the 17th day of August 2016 at or near Postmasburg in

the district of Postmasburg the accused unlawfully and with the intention to

kill shot Shuping Jeffrey Nouse a male person and that the said Shuping

Jeffrey Nouse passed away at Kimberley, in the district of Kimberley on 23

August 2016. Count 3 that of kidnapping, it is alleged that on the same day

of 17 August 2016 and at or near Postmasburg in the district of Postmasburg

the accused did unlawfully and intentionally deprive Johannes Baaitjie of his

freedom of movement. Count 4, Contravention of section 3(1) of the

Firearms Control Act, it is alleged that on 17 August 2016 at or near

Postmasburg in the district of Postmasburg the accused were unlawfully and

intentionally in possession of a 9mm calibre firearm. Count 5, Contravention

of Section 90 read with section 1, 120(1) and 121 of the Firearms Control

Act, the accused were in possession of 9mm calibre ammunition.

9. It must be mentioned from the outset that the State alleges that accused

numbers 2, 3, 4 and 5 as well as former accused number 6 either on their

own or with persons unknown to the State conspired to kill Baaitjie; that the

murder of Baaitjie was planned and premeditated. Further, that the accused

foresaw the possibility that Baaitjie would not be alone. They were prepared

to kill whoever was with him. Baaitjie was to be sworn in as a Ward

Councillor on Thursday 18 August 2016. By Killing him, the State alleges

that the accused wanted to ensure that a by- election is held in Ward 2 of the

Danielskuil Municipality. This would have given them the opportunity to rest

back political control of the Danielskuil Municipality. In this regard, the State

alleges that accused number 5 had the expectation of more lucrative

contracts from the Municipality should it not be under the control of the KCF-

DA alliance. The State further alleges that accused number 1 became part

4

of the conspiracy and discussion to kill Baaitjie when he provided transport

for accused numbers 2 and 4 to Postmasburg. The State further alleges that

Baaitjie and Nouse were killed by all of the accused, acting as a group of

persons, either on their own, or with persons unknown to the state, in the

execution or furtherance of a common purpose or conspiracy. All the

accused pleaded not guilty to the charges preferred against them.

10. The appearances and representations of the accused are as follows:

For accused number 1 is Mr W J. Els, accused number 2 Mr L. Setouto, for

accused number 3 Mr Buthelezi who substituted Mr T. Fourie who’s

instructions and mandate was terminated by accused number 3 when the

trial started. Furthermore, Mr Buthelezi’s instructions were also terminated in

the same way after he presented accused number 3’s closing arguments. He

is substituted by Mr Moroke. Accused number 4 is represented by Mr H.

Steynberg and for accused number 5 is Mrs S. Easthorpe. All the legal

representatives are acting on the instructions of the Legal Aid Board of South

Africa, Kimberley. The State is represented by Mr J.J Cloete assisted by

Ms.K. Ilanga.

The Pleas

11. It is important to place on record that all legal representatives in this matter

informed the Court that they did explain, fully, to the accused they represent,

respectively, the provisions, purpose and implications of Section 51 (1) of the

Criminal Law Amendment Act (generally referred to as the minimum

Sentencing Legislation). In particular, they explained that for counts 1 and 2

the accused, if found guilty of murder in those circumstances, and no

substantial and compelling circumstances are found to exist in their cases,

they face the possibility of life imprisonment sentence. They also explained

to them the competent verdicts applicable to their charges as well as the

principle of common purpose and the alleged conspiracy.

12. With regards to the plea-explanation for accused number 1 Mr Els

addressed the Court from the bar and placed the following on record: that

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accused number 1 was approached by a certain Tiro Lekgotla (who in this

trial is referred to as the so-called section 204 witness for the State) to

provide or assist him with transport from Kuruman to Danielskuil. Accused

number 1 made use of his girlfriend’s car and on his girlfriend’s insistence he

was the driver of the motor vehicle. Whilst in Danielskuil he was informed

that they now have to go to Postmasburg. From there Lekgotla took over the

driving of the motor vehicle. In Danielskuil the said Lekgotla picked up two

passengers and they travelled to Postmasburg. Whilst in Postmasburg

accused number 1 at some stage alighted from the vehicle to go to a nearby

Tavern. Lekgotla then informed him that he was quickly going to drop these

two passengers off. Accused number 1 realised after they had left that he

forgot his wallet and his cell phone in the vehicle. He had no means to

contact anybody. He waited and after sometime, Lekgotla came back with

the vehicle. Accused number 1 was upset with Lekgotla and drove back via

Kathu to Kuruman. The next day, he continues, accused number 1 was

contacted by Lekgotla again and amongst other things insisted that accused

number 1 take the vehicle to be washed. Lekgotla also claimed that he had

left his wallet in the vehicle and on inspection they found a bullet and a

holster in the vehicle which Lekgotla said belonged to him. Accused number

1 was arrested on 6 September 2016. He denies killing or in any way being

involved in the murder of Johannes Baaitjie and or Shuping Jeffrey Nouse.

He further denies kidnapping Johannes Baaitjie. Further, he denies the

possession of the firearm or ammunition as mentioned in the charge sheet.

He states that he was not involved in the planning or execution before or

during or after commission of these crimes. He merely provided transport for

valid and innocent reasons.

13. Accused number 1 confirmed that his counsel explained to him the

provisions of section 51(1) of the Criminal Law Amendment Act, Competent

Verdict, the meaning and implications of Common Purpose and Conspiracy.

He also confirmed the explanation of his plea of not guilty placed on record

by his counsel as a true and correct reflection of his instructions to him.

6

14. On behalf of accused number 2 Mr Setouto placed the following information

on record to explain why accused number 2 is pleading not guilty: With

regard to count 1and 2, being the murder charges, accused number 2 would

say that on the day in question, being 17th of August 2016 he was at all

material times in Danielskuil from the morning of 17th August 2016 until the

following morning of 18 August 2016. That it will be clear as evidence is lead

that accused number 2 on that particular day was moving around Danielskuil

and in several places. As far as counts 4 and 5 are concerned the accused

will deny any involvement. He denies kidnapping Baaitjie, denies having

been in possession of a 9mm calibre firearm and further denies having been

in possession of a 9mm ammunition. The aforesaid explanation and further

explanation regarding what the minimum sentence, competent verdicts,

common purpose and conspiracy entailed were confirmed by accused

number 2.

15. On behalf of accused number 3 Mr Buthelezi also confirmed having

explained in detail the provisions and consequences of section 51(1) of the

Criminal Law Amendment Act, competent verdicts, common purpose and

conspiracy to accused number 3. As to the basis of the pleas of not guilty, he

mentioned that accused number 3 bears no knowledge of the 5 counts put to

him. He also denies killing Johannes Baaitjie and Shuping Jeffrey Nouse.

Accused number 3 confirmed what Mr Buthelezi placed on record as his

instructions to him.

16. For accused number 4 Mr Steynberg handed up a written statement which

he read onto the record. In the statement accused number 4 placed the

following facts on record: that he understands the charges set out in the

indictment and confirms his plea of Not Guilty. His legal representative has

informed him that the minimum sentence is applicable in count 1 and 2. He

further confirms that his legal representative explained the provisions of

section 51(1) and 51(2) of Act 105 of 1997 to him. He also informed him of

the competent verdicts applicable to count 1 and 2. He denies that he

7

committed the offences as set out in counts 1 to 5 of the indictment; he

further denies any involvement in the offences and denies that he acted in

the furtherance of a common purpose with any of his co-accused to commit

the offences, either by way of a prior agreement or by an act of association.

He further states that he was not present when the offences were committed;

at the time when the offences were committed on 17 August 2016, he was at

Sloja lounge in Danielskuil. He was at the Sloja Lounge from around 17h00

until Sloja Lounge closed. He went to sleep after 24h00. He was not in

Postmasburg at any time on 17 August 2016. He also denies ever being in

possession of the 9mm calibre firearm or ammunition for a 9mm firearm in

his possession. The statement was confirmed by accused number 4. The

statement in explanation of his plea was admitted as Exhibit A.

17. Ms Easthorpe addressed the court from the bar regarding accused number

5, Mr Matthews Legodu. She confirmed having explained the implications of

the Criminal Law Amendment Act as well as the competent verdicts and the

implications of common purpose in regard to all the other offences explained

to accused number 5. Regarding the basis of his defence she pointed out

that accused number 5 denies committing or participating in any of the

charges against him. She mentioned that the various allegations relating to

each count will be dealt with in the course of the trial. Accused number 5

confirmed what his legal representative placed on record regarding the

implications of the Criminal Law Amendment Act, the common purpose

principle, the competent verdicts applicable, as well as the basis of his

defence. Before dealing with the evidence it is apposite to state the legal

principles applicable and from which the case is to be decided.

The legal principles applicable

18. It is trite that the burden of proof in criminal proceedings1 is on the

prosecution to prove the guilt of the accused beyond a reasonable doubt.

1 See S v V 2000 (1) SACR (SCA) at 455 A-C; S v Van der Meyden 1991 (1) SACR 447 (WLD) at 449j-450b.

8

There rest no duty on the accused to prove his/her innocence. In S v Van

der Meyden the court correctly held that:

a. “The proper test is that an accused is bound to be convicted if the

evidence establishes his guilt beyond reasonable doubt, and the logical

corollary is that he must be acquitted if it is reasonably possible that he

might be innocent. The process of reasoning which is appropriate to the

application of that test in any particular case will depend on the nature

of the evidence which the court has before it. What must be borne in

mind, however, is that the conclusion which is reached (whether it be to

convict or to acquit) must account for all the evidence. Some of the

evidence might be found to be false; some of it might be found to be

unreliable; and some might be found to be only possibly false or

unreliable; but none of it may simply be ignored.”

19. The Supreme Court of Appeal provided guidance in the correct approach to

the evaluation of evidence in a criminal trial in S v Chabalala 2 :

b. “The trial court’s approach to the case was, however, holistic and in this

it was undoubtedly right: S v Van Aswegen 2001(2) SACR 97 (SCA).

The correct approach is to weigh up all the elements which point

towards the guilt of the accused against all those which are indicative of

his innocence, taking proper account of inherent strengths and

weaknesses, probabilities and improbabilities on both sides and having

done so, to decide whether the balance weighs so heavily in favour of

the State as to exclude any reasonable doubt about the accused’s guilt.

The result may prove that one scrap of evidence or one defect in the

case for either party (such as the failure to call a material witness

concerning an identity parade) was decisive but that can only be an ex

post facto determination and a trial court (and counsel) should avoid

2 2003(1) SACR 134 (SCA) at para 15.

9

the temptation to latch on to one (apparently) obvious aspect without

assessing it in the context of the full picture presented in evidence…”

20. Reference has already been made to a co-perpetrator and or an accomplice.

A perpetrator is a person who commits a crime. Where more than one

person commit a crime they are known as co-perpetrators. The liability of

each co-perpetrator is based on his/her own act and his/her own intent.3 In

that regard evidence of such an accomplice or co-perpetrator must be

approached with caution. The reason for this was aptly enunciated as follows

in S v Hlapezula and another.4

c. “First, he is a self-confessed criminal. Second, various considerations

may lead him falsely to implicate the accused, for example, a desire to

shield a culprit or, particularly where he has not been sentenced, the

hope of clemency. Third, by reason of his inside knowledge, he has a

deceptive facility for convincing – his only fiction being the substitution

of the accused for the culprit”.

21. However, it is not necessary for the evidence of an accomplice to be reliable

or honest in all respects, for it to be accepted. The court must only be

satisfied, after the cautionary rule has been applied, that his version is true

beyond a reasonable doubt. In S v Francis5 the court held thus:

“It is not necessarily expected of an accomplice, before his evidence can be

accepted, that he should be wholly consistent and wholly reliable, or even

wholly truthful, in all that he says. The ultimate test is whether, after due

consideration of the accomplice’s evidence with the caution which the law

3S v Nooroodien and other 1998 (2) SACR 510 (NC) at 516 c.

4S v Hlapezula and another 1965 (4) SA 439 (A) at 440 D – E.

5 S v Francis 1991 (1) SACR 198 (A) at 205 E – F.

10

enjoins, the Court is satisfied beyond all reasonable doubt that in its essential

features the story that he tells is a true one (R v Kristusamy 1945 AD 549 at

556).”

22. Where corroboration is sought it must be other evidence which supports the

evidence of the accomplice witness and on the issues in dispute.6

Corroboration can be provided by circumstantial evidence and where the

accused persons show themselves to be lying witnesses. 7

23. The importance of disputing the evidence of witnesses a party does not

agree with in cross-examination was confirmed in President of the

Republic of South Africa and others v South African Rugby Football

Union and others 8 at paragraph 61 where the court held that:

d. “The institution of cross-examination not only constitutes a right it also

imposes certain obligations. As a general rule it is essential, when it is

intended to suggest that a witness is not speaking the truth on a

particular point, to direct the witness’s attention to the fact by questions

put in cross-examination showing that the imputation is intended to be

made and to afford the witness an opportunity, while still in the witness-

box, of giving any explanation open to the witness and of defending his

or her character. If a point in dispute is left unchallenged in cross-

examination, the party calling the witness is entitled to assume that the

unchallenged witness’s testimony is accepted as correct.”

6 S v Gentle 2005 (1) SACR 420 (SCA) at paragraph 18; S v Scott-Crossley 2008 (1) SACR 223

(SCA) at paragraphs 7 and 8.

7 R v Ncanana 1948 (4) SA 399 (A) at 405 and 406; S v Masuku and another 1969 (2) SA 375 (N);

Khumalo and Another v S [1998] 2 All SA 294 (N) at 304; S v Engelbrecht 2011 (2) SACR 540

(SCA) at paragraph 17.

8 1998 (4) SA 296 (T); S v Boesak 2000 (1) SACR 633 (SCA).

11

24. Where there are co-perpetrators it is not necessary to single out a principal

perpetrator. An indirect perpetrator is somebody who commits a crime

through the instrumentality of another. A number of persons will be guilty of

murder as co-perpetrators if it is clear that each had committed an

intentional, unlawful act which is causally connected with the death of the

victim. 9

25. Where there is a plot or an agreement or a conspiracy between persons to

murder a victim, it is not necessary that every conspirator should commit an

act which contributes to the death of a victim. Each one will still be liable for

the death, even if he/she does not participate in the commission of the

offence and even if he/she is not present at the scene of the murder. In S v

Cooper and Others10 the Appellate Division held:

” A conspiracy normally involves an agreement, express or implied, to

commit an unlawful act. It has three stages, namely, (1) making or formation,

(2) performance or implementation and (3) discharge or termination. When

the conspiratorial agreement has been made, the offence of conspiracy is

complete, it has been committed and the conspirators can be prosecuted

even though no performance has taken place. But the fact that the offence of

conspiracy is complete at that stage does not mean that the conspiratorial

agreement is finished with. It is not dead. If it is being performed, it is very

much alive. So long as performance continues, it is operating, it is being

carried out by the conspirators, and it is governing or at any rate influencing

their conduct. The conspiratorial agreement continues in operation and

therefore in existence until it is discharged (terminated) by completion of

performance or by abandonment or frustration or whatever it may be; per

Lord PEARSON in Director of Public Prosecutions v. Doot and Others,

(1973) 1 All E.R. 940 (H.L.) at p. 951. While the conspiratorial agreement is

in existence it may be joined by others and some may leave it. The person

who joins it is equally guilty; R. v. Murphy, (1837) 8 C. & P. 297 at p. 311

9 SNYMAN CRIMINAL LAW 6TH EDITION at pages 253 – 255.

10 S v Cooper and Others 1976(2) at SA 879A-H

12

(173 E.R. 502 at p. 508). Although the common design is the root of a

conspiracy, it is not necessary to prove that the conspirators came together

and actually agreed in terms to have the common design and to pursue it by

common means and so carry it into execution. The agreement may be

shown like any other fact by circumstantial evidence. The detached acts of

the different persons accused, including their written correspondence, entries

made by them, and other documents in their possession, relative to the main

design, will sometimes of necessity be admitted as steps to establish the

conspiracy itself. It is generally a matter of inference deduced from certain

acts of the parties concerned, done in pursuance of a criminal purpose in

common between them. R. v. Briscoe and Scott, (1803) 4 East 164 at p. 171

(102 E.R. 792 at p. 795). If the conspirators pursued, by their acts, the same

object, often by the same means, some performing one part of the act and

others another part of the same act, so as to complete it with a view to the

attainment of the object which they were pursuing, the conclusion may be

justified that they have been engaged in a conspiracy to effect that object.

The question to be answered is, had they a common design and did they

pursue it by a common means?”

26. Where a person was a party to a common purpose or prior agreement to

commit a particular crime (like murder), and he/she foresaw the possibility

that another crime (another murder), may be committed in the execution of

the plan, but he/she persisted, reckless of such consequences, and it

occurred, he/she will also be guilty of the second murder. 11

27. Where a participant in a common purpose commits an act which causes the

death of the deceased, and the other participants have the necessary

intention, the act of the one who caused the death of the deceased, is

regarded as the act of all the participants. Each participant should have

11 S v Majosi and others 1991 (2) SACR 532 (A) at 536 I – 537 E; S v Nkabinde and others 2017 (2)

SACR 431 (SCA).

13

involved himself or herself actively with the achievement of the common

purpose. 12

28. An accessory after the fact is someone who unlawfully and intentionally, after

the completion of the crime, associates him/herself with the commission of

the crime by helping the perpetrator to evade justice. 13

29. A court is entitled to consider the conduct of an accused after the event to

determine whether he/she associated him/herself with the murders and also

to determine what his/her state of mind was when the murders were

committed. 14

30. In deciding whether a group of persons jointly possessed a firearm and

ammunition, the State must establish facts from which it can be properly be

inferred that the group had the intention to exercise possession of the firearm

through the actual detentor and the actual detentor had the intention to hold

the firearm on behalf of the group15 .

31. It is of fundamental importance to record that at the beginning of the trial

there were no admissions in terms of section 220 of the Criminal Procedure

Act made by the accused. This resulted in the state facing a mammoth task

of having to tender evidence on each and every aspect of the case, including

the chain evidence on the discovery and identity and of the bodies of the

deceased, the causes of their death, the discovery and collection of the

exhibits and evidential material and samples, the sending thereof to the

12 S v Nooroodien (supra) at 516 i - 518 a; S v Mgedezi and others 1989 (1) SA 687 (A) at 705 I – 706

B. 13 Section 257 of Act 51 of 1977; S v Nooroodien (supra) at 526 e – f; S v Morgan and others 1993 (2)

SACR 134 (AD) at 173 j – 174 g.

14 S v Maelangwe 1999 (1) SACR 133 (NC) at 149 a – 151 e. 15 S v Mbuli 2003 (1) SACR 97 (SCA) at paragraph 71; S v Molimi and another 2006 (2) SACR 8 (SCA)

at paragraphs 37 and 38.

14

respective forensic laboratories, the handling and the analysis processes

they were subjected to.

The State Case

32. Mr Johannes Hermann Kotze testified that he resides in Postmasburg. He is

a farmer, project manager and a member of the local neighbourhood watch.

He received a telephone call at about 6:30 from his employee, Williams

Makhile who was on his way home to Bloemfontein. He reported about a

body of a person lying next to the road about two to three kilometres to

Groenwater who appeared not to be alive. Mr Kotze conveyed the report to

Mr Blackie Swartz who was the person in charge of the neighbourhood

watch at the time.

33. Mr Johan Henry Swartz is a sports grounds manager at Postmasburg High

and Primary schools and also a member of the Community Policing Forum.

He received a report from Mr Kotze on 18 August 2016 about a person that

was lying on the side of the road to Groenwater. He promised Mr Kotze to

report the incident to the police. He indeed phoned the SAPS in

Postmasburg though he can’t recall the name of the police officer he spoke

to.

34. Police officer Israel Gaonalerole Pule Mosakga testified. He is attached to

the Local Criminal Record Centre (LCRC) in Kuruman. He is employed as a

draughtsman and photographer. His evidence pertains to the two scenes

that will be referred to later at which he took photographs and drew up a key

thereto and a sketch plan that was subsequently handed in as Exhibit B.

Reference will be made to this Exhibit B extensively in the course of the

evidence.

35. The next witness was Constable Jacobs Sipho Kies. He is a member of the

South African Police Services (SAPS) attached to the Northern Cape

Provincial Crime Scene Management Task team. His duties entail

15

draughtsmanship, photography, the lifting of fingerprints and related

investigations in the whole of the Northern Cape Province. He testified that

he was called to a scene next to a school where he took photographs and

prepared a photo album and key thereto which was handed up as Exhibit C.

Similarly, his evidence regarding the photos he took at the scene would be

referred to extensively during the course of the Judgement. There are

certain evidential material (exhibits) that he picked up at the scene that were

tagged and later sent for analysis at the Laboratory.

36. The next witness was Constable Tshepo Mogoiwa. He is a member of the

SAPS, currently stationed at the Northern Cape Provincial Crime Scene

Management and Task Team. He was called to a scene on the road leading

to Groenwater on Friday 19 August 2016. He took photographs at the scene

and compiled a photo album, Exhibit C. They are photos 01 to 10 of the

photo album. He further went to Danielskuil to take photos 11 up to 44. He

also attended a post-mortem examinations performed by Dr Stark in

Kimberley on 22 August 2016. The photos are numbered 45 to 68.

37. On 24 August 2016 he attended at Postmasburg and Danielskuil where he

took photos to record the collection of exhibits as shown in photos 69 to 98.

On 25 August 2016 he attended a second post mortem examination

conducted by Dr Stark in Kimberley, photos 99 to 116. On the 31 August

2016 some aerial photographs of certain points in Postmasburg and

Danielskuil and on the road between the two places were taken. These

aerial photographs formed part of the album that Constable Mogoiwa

prepared as photos 117 to 122. He prepared a sketch plan and key thereto.

He read the key and explained the photos into the record. In light of the fact

that his evidence was not questioned by counsel who put certain questions

to him in cross examination, it is not necessary to record it as it is part of the

record. Reference will be made to these photographs and the album in the

course of the judgment.

16

38. The next witness was Warrant Officer Edward Peter Fortuin who was

employed by the SAPS as a photographer at the local records centre in

Kuruman. On the 22nd August 2016 at 16h40 he took photographs of a

business called Z & S Sound & Cell phone, 10 Main Street Danielskuil (the

Cell phone shop). The photographs that he took were compiled into an

album. The third photo album was admitted as Exhibit E. The witness further

assisted in the investigation of this matter by investigating a silver grey VW

Jetta, with vehicle registration number CJJ821NC on 20 September 2016.

He took photographs of the motor vehicle which he compiled into a photo

album which was admitted as Exhibit F. The witness prepared a statement

in terms of section 212 of the Act which is set out on pages 91 and 93 of

Volume 2 of the transcript16.

39. Mrs Dora Baaitjie who is the wife of the deceased, Johannes Baaitjie. Before

her evidence was tendered, Mr Cloete on behalf of the State addressed the

Court indicating that some of her evidence was of hearsay nature and

applied that part of the evidence be admitted in terms of Section 3(4) of the

Law of Evidence Amendment Act 45 of 1988. There was no objection on

behalf of accused number 1 up to 4. Although initially there was what could

be an objection on behalf of accused number 5, it turned out to be a mere

misunderstanding and Mrs Easthorpe for accused number 5 consented to

the evidence being tendered.

40. Mrs Dora Baaitjie testified that she is 48 years old and has been married to

the deceased for 25 years. They have 3 sons namely, the twins, Denver and

Donovan aged 25 years, and Jody who is 21 years old. Her husband was a

Councillor for the Democratic Alliance (DA). He was a contractor by trade

doing mainly construction, cleaning, paving and other small jobs.

41. She testified that on 17 August 2016 she was at home. Her husband left at

around 5pm. He indicated to her that a certain man had phoned him

16 Reference will be made to it at a later stage. It is the motor vehicle that would be used to convey would

be assassins to Postmasburg from Danielskuil and back.

17

regarding some paving work valued at R800 000-00 and the caller would

take only 10% of that amount. He indicated to her that the man said they

must meet at about 6pm at a business Hub in Postmasburg. Her husband

took Shuping Nouse to accompany him, the reason being that his own

contract papers were incomplete. He left in his Ford Ranger van. Before he

left ,his vehicle had not been parked inside his garage but on the premises

where it was visible to any passer-by.

42. Mrs Baaitjie mentioned that just after 6pm her husband phoned her and in

the conversation she asked him whether the person had arrived. He replied

that the person called and said they were on their way and he should wait a

bit. Her husband’s cell phone number was 061 300 2183. She mentioned

that with this call it was the last time that she spoke to her husband. She

later called him around 7pm and two times thereafter around 9pm. The

phone was just ringing and not being answered. She made several

telephone calls in the cause of the night and the phone just kept on ringing

without a response.

43. The following day on 18 August 2016 she woke up at 05:00. She woke the

children up as well. She prepared herself for the day. She called her

husband but the phone rang unanswered. She called her uncle and told him

that her husband did not return home the previous night. The uncle came to

her house. She explained to him the circumstances under which he left the

previous day. The uncle went to obtain a number from Nouse Shuping’s

mother so that he could call Nouse. He called but the phone of Nouse went

to voicemail.

44. Mrs Baaitjie called her other uncle who lived in Postmasburg, named Hendrik

Baaitjie. She requested him to look around for her husband’s van in the

area. Hendrik started at the business hub where he called and reported that

the van was not there. Later he called her and asked her to urgently come to

Postmasburg.

18

45. Mrs Baaitjie left with her other uncle, Piet Pienaar for Postmasburg. As they

approached Groenwater, they saw a Police van parked on the side of the

road. The van meant nothing to them and proceeded to Postmasburg. They

ultimately arrived at the school where she saw several people in the area.

She was asked to identify a jacket which she identified as belonging to her

husband. The jacket is on photos 48, 49 of Exhibit C. Her husband was

wearing the said jacket when he left for Postmasburg. She also mentioned

that her husband used to have a blue hat, with DA colours which he kept on

the head rest of the van. She also identified a Nokia cell phone, Exhibit 7, as

belonging to her husband. She mentioned that her husband was supposed

to be sworn in as a Ward Councillor on the 18th of August 2016.

46. Mr Hendrik Baaitjie is the cousin of the deceased Baaitjie. At about 05:00 he

received a call from Mrs Dorah Baaitjie about the disappearance of her

husband. She requested him to look for his van at a mine house and around

Postmasburg. At the mine house (Kolomela Hub) he did not find the van.

He drove along Griekwastad road, searching. He saw a van parked next to a

school. It had a DA sticker. He came closer and saw a person seated at the

back on the left side. He asked him what was happening. The man did not

respond. His eyes were wide opened. Mr Baaitjie drove straight to the SAPS

offices to report his discovery. The police confirmed that they already

received telephone calls regarding some people and were looking for them.

He drove behind the police motor vehicle back to the scene where he stood

aside and observed what was happening.

47. The next witness is Tshonto Christopher Kgomanyane. He is a member of

the SAPS, Visible Policing unit holding a rank of Sergeant stationed at

Postmasburg. He received a call just after 06:00 when he reported for duty

from a person named Blackie Swart. The latter reported about a male

person said to be lying next to the road near Groenwater. As Kgomonyane

was preparing his documents to attend to the report, his other colleague

Schalk, received a report about a van with an injured passenger parked next

to a school in Postmasburg. Sergeant Kgomanyane took two of his

19

colleagues namely, Constables Belauw and Munzelele to accompany him.

Along the road they came across a place where a male person was laying on

the side of the road with his stomach and face down. He estimated the

distance to be plus minus 23 to 24 km from Postmasburg. He identified the

place on photos 1 to 3 of exhibit B. He contacted the Police Station for them

to arrange an ambulance and the forensic personnel to come to the scene.

Whilst there, Warrant Officer Motsaga from the LCRC in Kuruman arrived.

According to Sergeant Kgomanyane he observed that on this body there was

what he described as possible bullet wound on the side of the neck. When

they turned the body over he noticed that the body had about 4 other wounds

which were possibly bullet wounds. From this body there was a trail of black,

or dark substance that looked to him like either oil or blood, which ran from

where the body was into the main tarred road and going a distance in the

direction of Postmasburg. He followed this trail for some distance but

returned before it could end. He estimated the trail to be about 500 metres. It

was from where the body was lying and leading to the direction of

Postmasburg or vice versa.

48. Sergeant Ohentse Macdonald Schalk testified that on the 18th August 2016

in the morning he was on duty as a Charge Office Commander. He received

a telephone call from a person who introduces himself as Baaitjie. He

reported that he had noticed a van parked next to the Postmasburg High

School with a passenger who appeared to have been injured. As there were

no other police officers at the station, as some attended the scene that

Sergeant Kgomanyane attended to, Sergeant Schalk drove alone to the

scene described by Mr Baaitjie. On arrival he found a Ford Ranger van

parked at the scene. He noticed a blood stain on the right hand side door of

the Ford Ranger van. The said Ford Ranger van is one depicted on photos

1, 2, 3, 4, 5, and 6 of Exhibit C. Inside the van on the rear passenger seat he

saw a male person seated in there. He noticed that this person was not

moving. His face had some blood stains. He was leaning on the left hand

side of the rear passenger seat with his legs on top of the seat. His eyes

were closed. Sergeant Schalk knocked on the window and he noticed that

20

this person was trying to turn but had difficulty. He also steadily removed his

legs from the seat onto the floor of the van. His eyes were at this stage still

closed. Sergeant Schalk opened the right rear door. He tried to enquire from

this person what happened. This person tried to indicate with his hands what

happened. The Sergeant could not understand what he was trying to explain

as he did so with great difficulty. There was no sound coming from his

mouth. He ultimately opened his eyes. The Sergeant observed that there

was a hole on the right temple which was bleeding. Below the left ear he

noticed another hole similar to the other hole, also bleeding.

49. Sergeant Schalk contacted the police station with his cell phone for them to

arrange for an ambulance to assist the injured person. Outside the vehicle

he noticed a bullet cartridge on the right hand side of the back or behind the

motor vehicle. He also noticed a bluish cap lying next to the motor vehicle.

The bluish cap is the one he identified on photos 39 and 40 of Exhibit C. He

also noticed a black and white hat which he identified on photos 36 and 37 of

Exhibit C. Further, he noticed a handkerchief lying next to the motor vehicle

with some blood stains. This he identified on photos 42 and 43 of Exhibit C.

Upon further observation he noticed a tracksuit top near the crèche adjacent

to this school. He identified the tracksuit top on photos 48 and 49 of Exhibit

C.

50. Sergeant Molelekeng, who was the detective on standby arrived and he

handed the scene over to him. At this stage people had started to gather as

they noticed that something had happened there. Netcare ambulance also

arrived at the scene. An official who identified himself as Alexander, assisted

the injured person. He took him out of the motor vehicle and placed him on

the stretcher. He took out two cell phones from his pockets which he handed

over to Sergeant Schalk. Sergeant Schalk handed the two cell phones to

Detective-Sergeant Molelekeng. The injured person ultimately taken to

hospital. Whilst there a lady who identified herself as Chantel Baaitjie

informed Sergeant Schalk that the van and the jacket that were discovered

belonged to her husband who left home the previous day with a man named

21

Nouse. Sergeant Schalk asked her how this Nouse looked like. Her

description matched the person that had just been taken to hospital. Next to

the jacket that was found at the scene was an empty Castle light beer bottle

which had some moisture in it. On the area around the van there were also

some marks of a motor vehicle which appeared to have been spinning or

driving roughly around.

51. Deane Casual Diphoko is a Detective/Sergeant in SAPS stationed at

Postmasburg. He has sixteen years’ service. On 18 August 2016 he was on

duty. He was called to a scene at a place around the school for

investigations. Upon arrival he noticed a Ford Ranger van parked on the

scene. The scene was already cordoned off. Sergeant Schalk was already

on the scene and he briefed him of the events. The injured person was no

longer on the scene. Detective/Sergeant Diphoko looked around and noticed

a jacket lying next to the primary school gate. Next to it was a bottle of Castle

Lite beer. He searched the jacket to determine whether it could be related to

what happened at the scene. In the pocket he found a cell phone and a key

of a Ford Motor vehicle. These he identified as the ones depicted on photos

26,27,48,49, and 51 of Exhibit C. He left the jacket where he found it but took

the keys and the cell phone. He handed the items to Sergeant Molelekeng as

the main member of SAPS on the scene. The cell phone was still on.

52. Also present at the scene were members of the Crime Intelligence Unit from

Upington. The cell phone was opened and required no password. One of the

Upington police officers send a message to herself and forwarded the same

message from the cell phone to someone else unknown to

Detective/Sergeant Diphoko. Members of the Directorate for Priority Crime

Investigation (the Hawks) arrived at the scene. Lieutenant-Colonel Louwrens

(Colonel Louwrens) was one of them. They arrived after the witness had

already had interactions with the Crime Intelligence Unit at the scene.

53. Graneo Frans Molelekeng is a Detective/Sergeant at SAPS and was on duty

at Postmasburg on 18 August 2016. Around 07:00 he received a telephone

22

call relating to a scene on the road near Groenwater, from the charge office.

He left for the scene and on arrival he found members of the SAPS uniform

division present. Among them was Sergeant Kgomanyane. He saw a body

of a person lying next to the road covered with a sheet. He opened the

covering sheet and noticed what appeared to be gunshot wounds on the

back of the head and on the side of the body. On turning the body at the

request of Motsaga who was taking photos, he noticed a wound/hole on the

forehead. Next to the body was a training shoe, which is on photos 2, 11, 12

and 13 of Exhibit “B”. He also noticed a trail of blood from where the body

was found leading to the tarred road and for about 600m in the direction of

Postmasburg where he came from.

54. Detective Sergeant Molelekeng received a call reporting about a scene next

to a school in Postmasburg. He immediately proceeded to that scene. He

found the LCRC officers busy taking pictures and some collecting evidential

material. Sergeant Schalk was in charge of the scene.

55. Sergeant Molelekeng testified that he received two cell phones from

Sergeant Schalk and one cell phone from Detective/Sergeant Diphoko which

was on. He opened it to view both incoming and outgoing calls, if any. He

found a message received by that Nokia phone. The message referred to a

meeting that was supposed to take place at Kolomela Hub having to do with

tenders to the value of R800 000-00. A person was also to receive 10% of

that amount and that the recipient of the message said he should come

alone. He opened the phone to see if he could find leads for investigation

and to possibly apply for records in terms of section 205 of the Act. Sergeant

Molelekeng identified the Kolomela Hub, which was known to him already at

the time, in photo 119 of Exhibit B. When he received the two cell phones

from Sergeant Schalk and the one from Detective/ Sergeant Diphoko,

members of the Hawks had not yet arrived at the scene. It was only the

Crime Intelligence Unit members from Upington present at the scene. A lady

Captain from the Crime Intelligence unit showed him her appointment

certificate upon his demand when she requested to have a look at the Nokia

23

cell phone. He thereafter handed the phone to her. He is not sure whether

the lady Captain send to her phone a “please call me” message from that

phone to try and identify its number or did something else. She however

gave the cell phone back to him after she finished handling it.

56. After finishing at the scene, Sergeant Molelekeng and all other police

officers, including the Crime Intelligence unit proceeded to the Postmasburg

police station. Members of the Hawks also arrived. He later handed over the

three cell phones to Warrant Officer Van der Merwe of the Hawks.

Lieutenant Colonel Louwrens and Sergeant Moshe were also present. He

recalled under cross-examination that someone who could be a brother to

the deceased in count 1, told him that the jacket belonged to the deceased

Baaitjie.

57. Mosimanegape Mcdonald Sekgweleo is a Warrant Officer at SAPS attached

to the Crime Intelligence section stationed at Kimberley. Their duties entail

gathering information and providing it to the detectives investigating crime.

On 18 August 2016 he was sent to Postmasburg to assist in the investigation

of an alleged crime. He arrived at a scene next to a school having driven

past what would have been another scene on the road next to Groenwater.

At the time that road was clear. He found Captain Ramela with two detective

officers from Postmasburg. She reported to him that the only lead she

received was the message on the cell phone of the deceased. Captain

Ramela requested one of the detective officers to send to her phone the said

message. Warrant Officer Sekgweleo in turn received the cell phone number

from Captain Ramela through “WhatsApp” at his request. He also read the

message that was sent to Captain Ramela.

58. Warrant Officer Sekgweleo testified that there was also a group of people

from the Save Tsantsabane Coalition at the scene. One of them Thetamane,

was a member of the Tsansabane Black Business Council. He requested

him to check the number and the name “Jonathan” on their database.

Thetamane dialled the number from two of his cell phones to check if he had

24

the number on his phone, and it did not reflect. Both calls went to voice mail.

He promised to check the number at their office. Warrant Officer Sekgweleo

spoke to Norman Pullers to check the numbers. In the meantime,

Lieutenant/Colonel Louwrens called the detectives and requested them to

bring the cell phones to him. They drove to the police station. Colonel

Louwrens told them that was taking the investigations over and they should

back off.

59. Lieutenant-Colonel Molebiemang Getrude Ramela (hereinafter Colonel

Ramela) was Captain in the Crime Intelligence Unit based in Upington. On

18 August 2016 she received an instruction from her Commander to go to

Postmasburg for investigations. She was accompanied by three of her

colleagues from Upington. She got directions to the scene from the

Postmasburg Police Station and went to the school, where she found

Detective/Sergeant Molelekeng and his colleagues. In her discussions with

Detective/ Sergeant Molelekeng he reported about the two cell phones from

the deceased’s car. She requested him to dial her number with that phone

so that the cell phone numbers could be exposed. After that she sent the

cell numbers to her office so that they can launch an application in terms of

section 205 of the Act as instructed by her Commander in Upington.17

Detective/Sergeant Molelekeng further reported that there is also a message

on that cell phone. She read the message and requested him to send to her

that message so that she could forward same to her commander in Upington

as well. They did so. She used her official number 082 260 1855 for the

messages. Soon thereafter Detective/Sergeant Molelekeng received a

phone call reporting that there were police officers from Kimberley who

wanted to see them. They immediately proceeded to the Postmasburg

police station.

60. At the police station Colonel Louwrens told them that he was now taking the

investigation over, they should discontinue their investigations and that

whatever information they had retrieved or found should be handed over to

17 Record page 76 to 77 (25/10/2018).

25

him. He undertook to later go to Upington to obtain her statement and

whatever items they obtained. She mentioned that indeed the following day

(Friday, 19 August 2016)18 Colonel Louwrens came to Upington for that

purpose. They therefore did not proceed with the section 205 application as

her Commander had undertaken. Colonel Louwrens further told her

Commander of the changes going forward. Colonel Louwrens retrieved the

message from her phone and told her to delete everything to do with the

case, which she did.

61. Under cross-examination Colonel Ramela mentioned that she was only

showed two cell phones but that she never touched any of the cell phones19.

When it was pointed out to her that her statement is dated 14 November

2016 and not 19 August 2016 as it should be the case according to her

evidence, she explained that Colonel Louwrens phoned her at some stage

from Kimberley and told her to change the date on the statement and that the

contents will remain the same.20 She can’t recall the date and month when

she received the phone call form Colonel Louwrens.

62. The State called Norman Richard Pullers. Mr Pullers used to be involved in

politics in local government as a member of Congress of the People party

(COPE), for the period 2011 – 2014. He later joined an organization called

Save Tsantsabane Coalition. The Coalition contested local elections in

Postmasburg. They had a good working relationship with Kgatelopele

Community Project which also contested elections. On 18 August 2016 Mr

Pullers was on his way to Danielskuil to attend a ceremony where the

counsellors who had been elected in the recent elections were to be

inaugurated. Along the way around Groenwater, he saw a police vehicle

parked on the side of the road. There was also an ambulance and several

people around. They also stopped to enquire what was happening. They

18 It will be noted that Colonel Louwrens’s version is that he did not go the following day. This contradiction is exploited by accused number 3. 19 This is in contradiction with the evidence of W/O Sekgweleo and D/S Moshe which is however immaterial. 20 See footnote 18 above.

26

had a good working relationship with the police, particularly Crime

Intelligence unit. As a leader in the community he was part of the people

who were fighting the scourge of drugs in Danielskuil. He asked what was

happening and was told that a councillor named Baaitjie had been shot and

killed. Mr Pullers phoned a member of Crime Intelligence known to him as

Casey and asked him if he was aware of the incident. Casey decided to

come to Danielskuil from Upington where he is based.

63. Mr Pullers continued with his trip to Danielskuil where the event was

supposed to be held. The event did not take place and they left for

Postmasburg. He had already learnt about another incident where the

person had been shot next to a school which was connected to the councillor

Baaitjie incident. At the scene at the High School he met Moss,21 also of

Crime Intelligence based in Kimberley. Moss is one of the police officers he

worked with in the fight against crime. Moss showed him an SMS message

and asked him if he knew Jonathan. Mr Pullers reported that the only

Jonathan he knew was the one who used to work at Komani and not

Kolomela Hub. Moss gave him the cell phone number for him to phone.

Pullers phoned the cell phone number with his two cell phones. Both were

not answered. He was referred to a call data on Exhibit “R”, page 22 where

he was shown that there was a call from 076 099 5436 which made a call at

13:45. The second one was cell phone number 071 994 7582 wherein a call

was made at 13:48. Mr Pullers confirmed that both are his cell phone

numbers he used to make the two calls to the number that was given to him

by Moss. Although Mr Pullers was cross examined for some time by Mr

Buthelezi nothing really came out from all the cross examination. The cross

examination centred around his general knowledge of the tender systems at

the Municipality and the activities of the Save Tsantsabane organisation.

Although he was not sure who Mosimanegape was, he confirmed that he did

21 The evidence suggests that Moss could be W/O Sekgweleo who came to the scene. He has testified about the same events at the scene.

27

make calls at the request of a member of Crime Intelligence unit being Moss,

who he did not know his surname.

64. Mr Gerhard Coetzer testified that he is a retired SAPS Detective Warrant

Officer who was stationed at Danielskuil. On 18 August 2016 just after 6:00

he received information about people from Danielskuil who were shot/killed

in Postmasburg. At about 07:00 he drove to Postmasburg to find out. He

went to the scene where he found the police already busy with

investigations. He knew the deceased Baaitjie but not Jeffrey Nouse. At

about 11:00 he returned to Danielskuil. In the course of investigations, he

assisted Colonel Louwrens by pointing out certain places and also fetched

people from whom statements were obtained. He was however not in

charge of the investigations.

65. Of significance, it was put to him by Mr Setouto on behalf of accused number

2 that on 18 August 2016 he went to accused number 2’s house at around

past 07:00 and took his cell phone with SIM card numbers 082 761 0085

claiming that he had been sent by Colonel Louwrens; that Coetzer said he

was conducting investigations on the house breaking case. He returned the

cell phone at about past 13:00. Mr Coetzer disputed everything that was put

to him. He mentioned that he only went to the scene at Postmasburg and

returned at 11:00. He was not part of the investigations. He did not go to

any other place. Mr Setouto put to him that according to the call data for

accused number 2’s cell phone 082 761 0085 in Exhibit “R”, on 18 August

2016 from 06:48:05 until around 13:34:24 no calls were made from accused

number 2’s phone. Mr Coetzer had no comment as he knew nothing about

call data.

66. Thapelo Howard Moshe is a Detective/Sergeant of the Priority Crime

Investigations unit (HAWKS) under the command of Colonel Louwrens. On

18 August 2016 he went to Postmasburg with Colonel Louwrens and

Warrant Officer Van der Merwe. They went to Postmasburg for the second

time that day at night to look for accused number 3, Mr Magawu. On Friday

28

19 August 2016 he visited a scene next to the road leading to Groenwater

with Colonel Louwrens and Warrant Officer Van der Merwe. That was a

place where the body of the deceased Baaitjie was recovered. Some items

for investigations were found at the scene. They called Captain McAnda

from the forensic unit to come to the scene. Whilst waiting for him, Colonel

Louwrens’ phone rang. The two rushed to Danielskuil Police Station and

Detective Sergeant Moshe was left alone at the scene. Captain McAnda

arrived with his team that included Constable Mogoiwa. They took

photographs of the scene and what was discovered. Detective/Sergeant

Moshe thereafter left for Danielskuil with one of the other police officers from

Postmasburg who had come to the scene. He is also the police official who

went to arrest erstwhile accused number 6, Paulus Mgcera on 11 October

2016 at Danielskuil accompanied by then policer officer Coetzer. He was not

home at the time. He was however later arrested at the ANC Provincial

Offices in Kimberley. He was not present when accused number 1 was

arrested on 6 September 2016. He does not know Tiro Lekgotla.

67. Ms Lebogang Kamesia Nouse resides in Danielskuil. The deceased

Shuping Jeffrey Nouse is her son. They lived together in the same house.

He was not married. He had a handicapped child. He left with the deceased

Baaitjie in the afternoon of 17 August 2016. He never came back. She was

unable to contact him because he left with Ms Nouse’s cell phone.

68. The following morning on the 18th August 2016, Ms Nouse received a

message from the deceased Baaitjie’ sister that Baaitjie had been shot and

he was found in Postmasburg. She went to Abdul who was working with the

deceased Nouse and requested him to take her to the scene. They rushed

to Groenwater. Whilst there, one of the police officers reported to them that

the person who was with Baaitjie is in Postmasburg hospital but that

arrangements to transport him to Kimberley were underway. They left for

Postmasburg. Along the way they came across an ambulance coming from

the opposite direction. She concluded that it was conveying her son. They

rushed to Postmasburg to fill up petrol and drove straight to Robert Sobukwe

29

Hospital in Kimberley. They found Jeffrey Nouse lying at the emergency

unit. She stayed with him for six days in hospital. On this day she left for

home to check what was happening as she left no one at home. At midnight

she received a call reporting about his passing away. (The witness was

emotional and broke into tears). That was on 23 August 2016. The following

day on the 24th of August 2016, she returned to hospital and found him at the

mortuary. Jeffrey Nouse was not involved in politics.

69. Mr Wikus Willem Wilhelm is employed by Netcare 911 as a BLS medic. He

worked with Breville Alexander who had since immigrated to England. On 18

August 2016 at about 08:00 they received a call about somebody who was

shot in front of a High School. They found a silver double cab Ford Ranger

with a DA sticker. In the van it was a person who had gunshot wounds.

They took him out of the vehicle after putting him on oxygen and stopping his

bleeding. He was placed in the ambulance and transported to Postmasburg

hospital. They handed the patient to Dr Viljoen. The person tried to speak

but could not succeed. He confirmed photos 101, 102, 103 and 104 of

Exhibit “D” as depicting the person he is referring to and who under his care,

did not sustain any injuries.

70. Isabel Maritsa Viljoen is a medical practitioner who was attached to the

Postmasburg Provincial Hospital at the relevant time. On the morning of 18

August 2016 she attended to a patient, Jeffrey Nouse who was badly injured

with gunshot wounds. He could not talk but could only respond by squeezing

her hand or open his eyes when she requested him to do so. He was also

paralyzed on the right side. She sat with him in the ambulance as he was

transported to Robert Sobukwe Hospital in Kimberley the same day. She

took some pictures with her cell phone. She identified the patient on photos

101, 102, 103, and 104 of Exhibit “D”. She later learnt that the patient had

died.

71. Gert Steyn is a medical practitioner who was at all relevant times working at

Robert Sobukwe Hospital. An affidavit prepared in terms of section 212(7) of

30

the Act was without objection admitted as Exhibit Z. He was part of the team

that attended to Jeffrey Nouse at the ICU on 18 August 2016 at 12h20. The

patient presented with a marked decrease in the level of consciousness. He

had a paralysis of the right side of his body and sluggish pupils on the side.

He had an injury to the left side of the brain, a bullet wound behind the left

ear and one on the right cheek area. He had a big stroke on the left side of

his brain due to the disruption of the blood flow as a result of the injury to the

internal carotid artery; had fractures to his C1 vertebrae and facial fractures

due to the trajectory of the wound. He was certified dead on 23 August 2016

at 11h55 pm.

72. Simon Setlholo is a mortuary attendant at Robert Sobukwe Hospital. He

kept a register of all bodies in the mortuary detailing the particulars and

circumstances of the bodies received and kept at the mortuary. On 24

August 2016 Beauty Mosinki, the forensic officer, received the body of

Jeffrey Nouse from him. During the handover the body did not sustain any

injuries.

73. The State called Ms Bontle Cordelia Mosinki who is a forensic pathology

officer at Robert Sobukwe Hospital. On 24 August 2016 she received and

booked the body of Shuping Jeffrey Nouse into the mortuary from Simon

Setlholo. On 25 August 2016 she handed the body over to Doctor Karin

Stark to perform the post-mortem examination. The body was identified by

Ms Lebogang Nouse. Her statement in terms of section 212 of the Act was

admitted as Exhibit X, and copies of the identify documents of Ms Nouse and

the deceased Jeffrey Nouse as Exhibits X1 and X2, respectively. She further

identified the body of the deceased Jeffrey Nouse on photos 99, 100, 101,

102 and 104 of Exhibit D.

74. The state handed up an affidavit of Boitumelo Malumbazo prepared in terms

of Section 212(7) of the Act as Exhibit “Y”. There was no objection from the

defence. The deponent avers that on 18 August 2016 at Postmasburg he

received from Detective /Sergeant Molelekeng the body of a deceased later

31

described as Johannes Baaitjie to the mortuary. On 22 August 2016 he

transported the body to Kimberley where a post-mortem examination was

performed by Dr Stark. Whilst in the possession and care of the deponent

the body sustained no further injuries.

75. The State tendered the evidence of Johannes Lodewyk Coetzee who is a

technical Contract Project Manager at Kolomela hub/offices in Postmasburg.

His duties entail supporting local black empowerment, black contractor

empowerment etc. They assist with Social Economic Development Plans,

Social Labour Plans and Company Social Investment Projects and

management proposal support to the Municipality. By virtue of his position

he has access to records of contractors that are awarded contracts at his

institution. He went through the records and could not find any award or

tender for paving to the value of R800 000-00 since February 2016 to the

end of the year. In 2016 there were contracts for a water pipeline and

reticulation for Gatkoppies reservoir and boreholes. They also did a project

for accommodation for doctors at the district hospital.

76. Mr Elkin Ancelo Topkin testified that he is employed by the Independent

Electoral Commission (IEC) South Africa in the Northern Cape. They

organise and manage National, Provincial and Local governments elections.

The previous elections were held in 2011 and the latest Local Government

Elections were held on 3 August 2016. Kgatelopele Municipality is

comprised of Danielskuil, Kuilsville and Sloja.

77. He prepared an affidavit for his evidence. It was accepted as Exhibit “U”. He

mentioned that the results of the 2016 local government elections led to

seven councillors, comprising of four ward seats and three proportional

representative (PR) seats. The seats were allocated as follows: African

National Congress (ANC) three seats; Democratic Alliance (DA) two seats.

Paulus Mgcera was the one ANC PR councillor. The deceased Baaitjie was

a Ward Councillors for the DA.

32

78. Mr Topkin testified that prior 2016 Kgatelopele had the ANC as a party that

won more seats, enough to take control of the municipality. In terms of

section 26 of the Municipal Structures Act, 1978 a vacancy shall exist if inter

alia, a ward councillor dies. In this case the seat that was occupied by the

deceased Baaitjie was declared vacant and a by-election was subsequently

held on 9 November 2016. It was contested by the ANC, Economic

Freedom Fighters (EFF) and the DA which became the ultimate winner.

79. Dr Karen Stark is a forensic Pathologist who conducted post-mortem

examinations on the bodies of the deceased Johannes Baaitjie and Jeffrey

Nouse at Robert Sobukwe Hospital in Kimberley on 22 August 2016. In light

of the admissions in terms of section 212 of the Act that were later made, I

shall not burden this judgment with the full details of her evidence. Her full

evidence is part of the record. The post -mortem examination process was

photographed by Constable Mogoiwa and the photos are to be found in

Exhibit ‘D’.

80. For the deceased Johannes Baaitjie, the post-mortem report on the medico-

legal examination was admitted as Exhibit ‘NN’. The Chief post-mortem

findings are the following:

“ the body of a coloured male with s igns of b lunt t rauma as wel l

as three gunshots appl ied to the body. A perforat ing gunshot

wound of the head with a wound tract f rom lef t poster ior to

r ight anter ior. A perforat ing gunshot f rom the lef t chest

through the 9 t h r ib, the diaphragm, the poster ior heart , the

infer ior vena cava, the r ight lung, the 5 t h r ib of the r ight chest

with a grazed wound of the arm. And then a penetrat ing

gunshot f rom the lef t la teral abdomen through the poster ior

lumbar vertebrae with a project i le lodged in the r ight poster ior

lower back. Number 5, an in jured brain, lungs and heart ; and

number 6, accumulated blood in the chest cavi ty and the cause

of death, mult ip le gunshots. ”

33

81. The wound on the head was 5 x 5mm and was at 1490mm measured from

the sole of the foot and 30mm to the left of the posterior midline. She

mentioned that this wound shows that the barrel of the firearm was at a

distance less than 1cm when it was fired because of the tattooing- photo 59

and 60 of Exhibit “D” there is inward bevelling of bone on the left of the

occipital bone of the skull.

82. The gunshot wound on the lateral side of the chest was 9 x 9mm and

positioned at 1165 mm measured from the left sole of the foot and 300mm to

the left of the anterior midline. This was also a close range shot of less than

1cm.

83. The 9 x 9mm gunshot wound in the lateral side of the abdomen, 950mm

measured from the left sole of the foot and 200mm to the left of the posterior

midline was also a close range wound being less than 1cm. There was also

a wound tract through the posterior second and third lumbar vertebrae which

is consistent with the left lateral side abdomen wound referred to above. A

projectile was retrieved at the right posterior lower back-as-shown in photo

64.

84. There was a dried out abrasion of 130 x 50mm over the right temporal area

of the scalp – photo 57 and photo 130 of Exhibit 2 – which was caused by

blunt force trauma. This is consistent with the deceased engaged in some

sort of struggle with the other people who administered some blunt trauma to

this head.

85. Abrasions on the tip of his nose consistent with blunt trauma or on a surface

possibly during a struggle or contact with the hard surface. A deep

laceration in the midline of the inner lip caused by teeth, possibly during

assault.

86. An abrasion with dried out skin of 230 x 14 mm over the left posterior

shoulder blade and abrasion with dried out skin over the whole left upper

34

arm; an abrasion with dried out skin of 180 x 120mm over the right lateral

arm – these injuries are consistent with a person getting out or falling out of a

moving vehicle onto the tarred road surface. They were caused ante-

mortem (before death).

87. The large abrasion of 550 x 280mm over the whole anterior chest and

abdomen sparing umbilicus consistent with a person being dragged over a

tarred road surface or gravel surface. An abrasion of 150 x 60mm on the

upper part of the right buttock consistent with a person being dragged over a

hard surface.

88. Abrasions over the knuckles of the left hand; laceration on the lateral side of

the fifth finger; fracture of the base of the fifth metacarpal bone meaning the

“pinky finger” was broken. The finger injury is consistent with blunt force

trauma possibly, tramping on the hand.

89. Horizontal abrasion over the right anterior knee; a dried out abrasion of 140 x

30mm over the lateral part of the right upper leg; a dried out abrasion of 140

x 50mm over the lateral side of the right calf. These injuries are consistent

with a person falling out of a moving vehicle or being dragged over a hard

surface.

90. Linear abrasions over the right lateral calf; laceration of 802 x 50mm over the

right toe with exposure of the underlying tibias’ anterior tendon. The injury is

consistent with a toe being dragged on the tared road surface for some

distance. This view is supported by the shoe that was damaged and the

injury on the dorsal part of the left foot which is a deep laceration and not a

mere bruising.

91. The blood sample was taken sealed and given to Constable Mogoiwa

together with a projectile retrieved at the lower back of the body, and the

buccal swap sample from the mouth. The kidneys were pale, meaning there

was loss of blood.

35

92. Dr Stark testified as follows regarding the injuries on the body of the

deceased Jeffrey Nouse. The external appearance of the body, a gunshot

wound of 8 x 8mm in the right cheek, 1620mm measured from the right sole

of the foot and 100mm to the right of the anterior midline. An abrasion ring of

3mm around the central defect and tattooing in a radius of 30mm over the

lateral part of the defect. This wound is consistent with an entrance gunshot

wound. This was an immediate range gunshot, i.e. more than a centimetre

distance. A slit like gunshot wound of 5mm in length in the left side of the

neck over the mastoid process, 1630mm measured from the left sole of the

foot and 180mm to the left of the anterior midline. The wound edges were

irregular. There was no soot deposition or tattooing present and this wound

is consistent with an exit gunshot wound to the one already referred to.

93. Dr Stark mentioned that the brain was oedematous with flat gyri. She

explained that the brain consists of gyri and sulci. Sulci is the valleys

wherein the blood vessels are, and the gyri is the outer part which makes

convulsions. The brain weighed 1352 grams. Usually it should be between

900 grams and 1100 grams. The brain tissue had a pink colour and a very

soft consistency on cut section and this is consistent with brain necrosis

which means the brain tissue was dead. The pharynx is the soft tissue, in the

swallow area. There was a haemorrhagic wound tract through the posterior

pharynx with tissue destruction and haemorrhage in the surrounding soft

tissue consistent with the gunshot wounds identified above. The lips and the

gums were also pale in colour.

94. She testified that there was haemorrhage in the soft tissue and the muscles

of the left neck. The left neck is where the exit wound was just below the

mastoid process, with destruction of the tissue and a thrombus in the internal

carotid artery. This is a very important blood vessel that takes oxygenated

blood to the brain. There was a clot in this artery, and that actually cut off the

blood supply to the brain, hence the dead brain tissue, all caused by the

gunshot wound. The lungs were also oedematous and congested, meaning

36

that there was a lot of fluid in them. The lower lobe of the right lung was grey

in colour and it was friable on touch on the cut section which is consistent

with Adult Respiratory Distress Syndrome (ARDS). This happens usually in

people who have been hospitalised for a long time. They develop a sort of

infection in the lungs and the lungs become very heavy. Both kidneys were

pale in colour.

95. Dr Stark took a blood swab, sealed it and handed it to Constable Mogoiwa

for DNA analysis. Her chief post-mortem findings are the body of a black

adult male with a perforating gunshot of the face; a wound tract extending

from the right to the left mastoid process with fractures of the mandible and

the facial bones, soft tissue and muscle destruction; a thrombus in the left

internal carotid artery and brain necrosis. The cause of death is

complications of the gunshot of the face. The report was admitted as Exhibit

“OO”.

96. The State called Sherilee Megan Fleming (Palm)22. She is a Warrant Officer

attached to the Forensic Science Laboratory in Cape Town, where she is

employed as a Forensic Analyst. During August 2016 she was a member of

the Kimberley Crime Scene investigation team where she was employed as

a crime scene examiner. She was working under the command of Captain

Andre McAnda in 2016. She attended scenes in the investigation of this

matter for the purposes of examination and securing of exhibits. She

prepared a forensic statement which was commissioned on 7 September

2016 and was admitted as Exhibit “BB” with no objection by any of the

accused.

97. On 18 August 2016 she attended a scene at Postmasburg at an open field

between Wonderland school and the sports grounds. Present at the scene

was police officer Kies. The scene she attended is depicted in Photos 1, 2,

3, 4, 5, and 6 of Exhibit C. She processed the crime scene on the 18 August

22 At the time of the investigations she used the surname Palm which is reflected in her Forensic statement.

37

2016 at 12 during the day. She collected the following Exhibits: 1 cartridge

case packaged and sealed in Exhibit bag PA5001752306 and she marked it

Exhibit “B1”. Pieces of broken glass and stone covered with presumable

blood packaged and sealed in exhibit bag numbered PA 6002309043 and

she marked it Exhibit B. This is found on photos 30, 31 and 32 of Exhibit C.

One stone covered with presumable blood packaged in a bag sealed with

number PA6002309029 marked Exhibit B3. It is depicted in photos 33, 34

and 35 of Exhibit C. One white and black woollen hat covered with

presumable blood packaged and sealed in exhibit bag number

PA5001752290 marked exhibit B4 and it is depicted in photos 36, 37 and 38

of Exhibit C. One blue hat packaged and sealed in exhibit bag number

PA6002309045 and marked it Exhibit B5. This is found on photos 39, 40

and 41 of Exhibit C. One multi-coloured check handkerchief packaged and

sealed with PA6002309044 marked exhibit B6. It is depicted on photos 42,

43 and 44 of Exhibit C. One stone covered with presumable blood,

packaged and sealed in exhibit bag number PA6002309028 and marked it

Exhibit “B7”. The stone is depicted on photos 45, 46 and 47 of Exhibit C. One

grey jacket packaged and sealed in exhibit bag number PA3001008805 and

marked Exhibit “B8”. The item is depicted on photos 48’ 48 and 50 of Exhibit

C.

98. On 18 August 2016 at 13:23 Warrant Officer Fleming processed a silver Ford

Ranger with Registration number CGX 576 NC at Postmasburg police station

and collected the following exhibits from the vehicle: One piece of cut out

neon green material with presumable blood packaged and sealed in exhibit

bag number PA600239030 marked as Exhibit B11. This is in photos 55, 56

and 57 which show the collection of Exhibit B11. One DC swabbing

evidence collection kit, with serial number 14DCAY9004 containing two

swabs with presumable blood packaged and sealed in exhibit bag number

PA4002031154 marked as Exhibit B12. It is depicted on photos 58, 59, 60,

61 and 62 of Exhibit "C"23. One DC swabbing, evidence collection kit, with

serial number 14DCAY9009 containing two swabs with presumable blood

23 The swabs are taken from Ford Ranger van.

38

packaged and sealed in exhibit number PA4002031159 marked as Exhibit

B13. It is depicted in photos 63, 64, 65, 66, 67 and 68 of Exhibit "C24". One

DC swabbing, evidence collection kit with serial number 14DCAY9010

containing two swabs with presumable blood packaged and sealed in exhibit

bag number PA4002031160 marked as exhibit B14 depicted on photos 69,

70, 71, 72, 73 and 74 of Exhibit C. One gunshot residue evidence collection

kit with serial number 13S1M1253XX packaged and sealed and marked as

exhibit B15 depicted on photos 75, 76, 77 and 78 of Exhibit C.

99. On 19 August 2016 Warrant Officer Fleming, assisted by Constable Mogoiwa

as a photographer, processed a scene on R385 Road between Danielskuil

and Postmasburg which is just outside Groenwater where the deceased was

found on the 18 August 2016 and collected the following exhibits from the

scene: One projectile packaged and sealed in exhibit bag number

PA6002308829 marked as Exhibit B16 which is depicted on photos 4, 5 and

6 of Exhibit "D". One silver beer bottle cap packaged and sealed in exhibit

bag number PA6002308848 marked Exhibit B17 depicted on photos 7 and 8

of Exhibit "D". One silver beer bottle cap packaged and sealed in exhibit bag

number PA6002308849 marked exhibit B18. It is depicted on photos 7 and 8

of Exhibit "D".25

100. On 23 August 2016 at 07:45 in the morning Warrant Officer Fleming received

the following exhibits from Constable Mogoiwa who attended the post-

mortem examinations in Kimberley on 22 august 2016 conducted by Dr

Stark. One projectile sealed in exhibit bag number PA6002308834 marked

Exhibit B23 depicted on photos 67 and 68 of Exhibit "D". One DB, DNA

Reference Sample Collection Kit, taken from the deceased, packaged and

sealed in exhibit bag number PA4002663537 marked Exhibit B24.

24 Also taken from the Ford Ranger van. 25 There were some items such as a piece of a leaf, a broken branch with leaves, a piece of a tissue paper and silver beer bottle cap found from the Avanza Toyota on 19 August 2016 which ultimately did not have any bearing on the case.

39

101. On 25 August 2016 at 08:09 in the morning, Warrant/Officer Fleming

attended the post-mortem at Kimberley Mortuary and received the following

exhibit from Dr Starke which was then packaged and sealed by Warrant

Officer Fleming. One swab, taken as a control sample, packaged and sealed

in exhibit bag number PA5001752484 marked Exhibit B30. Depicted on

photos 114, 115 and 116 of Exhibit "D".

102. On 05 September 2016 at 13:40 Warrant Officer Fleming processed the

660ml Castle Lite Beer bottle and collected the following and one DC

swabbing evidence collection kit, with serial number 14DCAY9003 containing

two swabs packaged and sealed in exhibit bag number PA4002031153

marked Exhibit B31 and depicted on photos 26 and 27 of Exhibit C. Warrant

Officer Fleming mentioned that Exhibit B9 and B10 were collected by

Constable Kies and taken to the finger print laboratory for analysis for

fingerprints.

103. Exhibits B2, B3, B4, B5, B6, B7, B8, B11, B12, B13, B15, B18, B21, B22 and

B24 were packaged in official exhibit bags PW3000579240 marked as

Postmasburg CAS88/08/2016 and Kimberley LCRC 235/08/2016 and

delivered by Skynet courier services company with Waybill number

089901312157, 009935421805, 009935421760 to the Laboratory. In a

nutshell all the exhibits which were recovered at the scenes were prepared

by Warrant Officer Fleming for sending to the Laboratory. She also prepared

covering letters for the said exhibits which were also admitted without any

objections as exhibits before the court. They all fall under Exhibit BB. The

covering letters and Waybills from Skynet were admitted as Exhibits BB1 to

BB4 respectively.

104. The next witness was JJG Nel a police officer who played a role by receiving

Exhibits at various times and having to transport them to various destinations

as instructed by the investigating officer in this case. He prepared a

statement marked A83. In particular, he testified that on 20 September 2016

he received some exhibits from Warrant Officer Fortuin from the Local

40

Criminal Record Centre in Kuruman. They were sealed in a Forensic bag.

The following serial numbers were attached to these packs as

PA4001872315; PA4001867138; PAB000413983; PAB000413980 and

PAB000413982 respectively. On 22 September 2016 he drove to Plattekloof

to hand over the exhibits at the forensic laboratory is in Cape Town. He

mentioned that whilst the exhibits were under his care they were not

tampered with in any way. He handed them in at the reception of the

forensic Laboratory. He received an acknowledgement of receipt and same

was admitted as Exhibit “AA”. Under cross examination by Mr Buthelezi it

also transpired that Mr Nel also received three bags from Warrant Officer

Van der Merwe to deliver to the Laboratory.

105. The next witness for the state was Mishka Eckstein, she is a Senior

Administrative Clerk at the South African Police Services attached to the

Forensic Science Laboratory stationed at Plattekloof. She prepared an

affidavit in terms of section 212 of the Act which was admitted as exhibit CC

without any objection from the defence. She testified on the 22 September

2018. She received five sealed evidence bags with seal numbers

PAB000413983, PAB000413980, PAB000413982, PA4001872315 and

PA4001867138 from Captain J.J.G. Nel. She registered Postmasburg CAS

88/8/2016 on the FSL Admin system and LAB number 381772/16 was

generated. She was satisfied that the seals were intact and corresponded

with the covering letter. The Postmasburg CAS 88/8/2016 docket was

handed over to the Biologist administration component for analysis on 23

September 2016. The bag was handed for safe keeping until the analysis

were conducted. It transpired during cross examination by Mr Buthelezi on

behalf of accused number 3 that she also received some buccals which were

not in the same bags.

106. The next Witness is Warrant Officer Lonwabo Mpumelela Mbanguta. He is

employed by the South African Police Service attached to the biology unit as

a forensic analyst at Plattekloof. He prepared an affidavit in terms of section

212 of the Act admitted as Exhibit DD without objection by the defence. On

41

26 September 2016 he received several sealed evidence bags with serial

numbers PAB000413983, PAB000413982, PAB4001872315,

13DCAD9439TF, 13DCAD9439, 13DCAD9439(under spare wheel- watch

outlet hole), PAB000413980, PA4001867138, 13DCAD5007TF,

13DCAD5007(inside boot of vehicle pin lock hole) which he marked D1, and

13DCAD5007 which he marked D2. The purpose of receiving these items

was for him to perform an analysis.

107. He also during the cause of his duties on 13 October 2016 received one

sealed bag with seal number PA4001666071 containing a sealed evidence

bag PA5001752484 and one swab holder not sealed containing one control

blood sample.

108. He mentioned that he examined the relevant exhibits by a process requiring

competency in biology and the results are given in the table that was

attached to his affidavit. For carpet A, a possible high friction was removed.

There was no possible blood detected on it. For car Carpet marked B there

was possible high friction removed and there was possible blood detected;

swab marked D1 was not tested; swab marked D2 was also not tested. A

plastic cover marked D swab and C1 and C2 were not tested. A plastic cover

marked D, possible high friction was removed and possible blood was found

on it. Swab marked D1 and D2 were not tested. Swab marked D2 was also

not tested. The exhibits and reference samples were at all times in his

safekeeping. During this period and when they were opened and during

examination and analysis they were not contaminated or tampered with.

After completion of his official duties he handed the docket with contents

over to the administration component of the biology unit of the Forensic

Science Laboratory. His affidavit was commissioned on 17 February 2017.

109. Warrant Officer Mbanguta mentioned that when he received and opened the

swabs C1, C2, and D1 and D2, he noticed that there was a mould that was

growing on the swabs, and according to their procedure if the sample is

mouldy, they do not test it because they are not likely to find any DNA on it.

42

Warrant Officer Mbanguta further explained the protocol that they follow in

the laboratory which would prevent the contamination of exhibits in detail.

He further mentioned that his examinations were known as preliminary

testing. The later analysis and the comparative analysis is done by other

analysts.

110. The next witness is Sameerah Kagee. She is a Warrant Officer in the South

African Police Service attached to the biology unit of the Forensic Science

Laboratory at Plattekloof as a Forensic Analyst. She prepared an affidavit in

terms of section 212 of the Act which was handed up, without any objection,

as Exhibit EE. She outlined several exhibits that she received for analysis.

She analysed the said exhibits and her findings are found on the report that

is attached to her affidavit. In short, possible skin cells and blood was found

in: Glass and Stone B2; Stone B3; Hat B4; Hat B5; Handkerchief B6; Stone

B7 and Material B11. Possible skin cells only, were found in Cap B17; Cap

B18; Tissue B21 and Cap B22. Possible blood only, was detected in Swabs

B11 to B14.

111. Warrant Officer Kagee concluded her evidence by stating that she followed

the applicable protocols in the laboratory and that whilst all the samples and

swabs were in her possession, were neither contaminated nor wrongly

tempered with. The samples in which nothing was found were packaged and

dispatched back to the investigating officer and play no further role. Those in

which the results were positive are kept in the docket. Where necessary,

cuttings of the materials are made for convenience. She thereafter retuned

the docket together with the exhibit samples to the administration section of

the laboratory. She was not cross examined.

112. The next witness for the state is Kristee Rose Heynes. She is a Warrant

Officer in the South African Police Service, attached to the biology section of

the Forensic Science Laboratory in Plattekloof. She is employed as Forensic

Analyst and a reporting officer at the Forensic Laboratory. As a forensic

analyst she interprets DNA profiles from forensic exhibits that are received at

43

the laboratory. As a reporting officer she makes the final DNA interpretation

and thereafter prepare an affidavit in terms of section 212 of the Act which is

used in court when she testifies. She has vast experience in the field of

Biological Sciences (9 years). For this particular case she mentioned that

she received Exhibits at four different dates.

113. She mentioned that in their laboratory they compare DNA obtained or

isolated from various Crime Samples such as blood or skin cells on forensic

exhibits and they compare it to DNA obtained from various reference

samples. The samples can be from the inside of someone’s cheek or blood

drawn, whichever way they choose to obtain those reference samples, and

they compare those and the final interpretation that is done is the

comparison of DNA profiles obtained from crime samples and that of

reference samples to establish whether the donor is the same person.

114. Warrant Officer Heynes prepared a table in which she made an illustration of

the DNA profiles from various exhibits as well as the reference samples of

the two deceased’s and the description of the results in table one which is

given at paragraph 4.1 and 4.2 on page 3 of her affidavit. On page 3 of her

affidavit at 4.1 she concluded that the DNA results from possible blood on

material B11, swabs B12, swabs B13 and swabs B14 match the DNA result

of the reference sample S Nouse. The most conservative occurrence for this

DNA result is 1 in 2.8 times 10 squared(x4) trillion people. At 4.2 the DNA

results from the possible blood on carpet B2 and B3 and possible blood on

plastic cover D2 match the DNA results of the reference sample J Baaitjie.

The most conservative occurrence for this DNA result is 1 in 3.7 times to the

six times trillion people. Put differently, she found that the DNA material of S.

Nouse matched the swabs obtained from the Ford Ranger. Further, that the

DNA material of J. Baaitjie matched the swabs obtained from the carpet of

the motor vehicle located in the boot of the Jetta motor vehicle.26

26 It is to be noted that this conclusion was specifically not admitted by accused number 3 in the admissions made in terms of section 212 of the Act. His main contention is why in the first samples obtained no blood could be found. There is however no alternative version provided. This aspect is covered in the evidence of Colonel Louwrens.

44

115. It is important to state at this stage that the evidence of the witnesses

referred to so far is either common cause or was not seriously disputed.

Where it was questioned, no alternative version was put forward. This of

cause is not surprising because of the nature of the defences put forward by

the accused. Some of the evidence tendered later became the subject of the

formal admissions made by the accused. In the result the evidence can be

safely be accepted as correct. I now proceed to deal evidence tendered by

the state which raised some controversies.

116. The State called Georgewell Boitumelo Kaleche. To avoid confusion, he will

be referred to as Boitumelo. He is 38 years old employed by the Department

of COGHSTA in Kimberley. He is a resident of Danielskuil. He knows all the

accused accept for accused number 1. On 17 August 2016 in the morning,

he went to the Danielskuil central business district with his wife and children.

The family was on their way to Kuruman and he was to remain in Danielskuil.

He went to a shop to buy a music system. By a music system he is referring

to an Amplifier and a Speaker. The shop he went to is shown on Exhibit “E”.

He arrived there between 08:00 and 09:00. Whilst in the shop accused

number 3, Mr Magawu entered the shop. Boitumelo was happy to see

accused number 3 because he saw an opportunity to request transportation

of the music system to his house. He had however, arranged with a taxi

driver Mr Jan for help. Accused number 3 agreed to assist.

117. Boitumelo testified that he overheard accused number 3 telling the shop

owner that he had lost his cell phone and that he wanted to do a SIM swop.

By that he understood that it had to do with obtaining a cell phone SIM card.

The music system was connected and test played. In the meantime, Jan

who had been arranged to assist with a taxi arrived. Boitumelo released him

to go as he had now had an arrangement with accused number 3.

118. The music system was dismantled after the testing and was taken into the

Avanza motor vehicle that accused number 3 was driving. Along the way he

45

offered to buy alcohol for accused number 3, could not turn the offer down.

They stopped at a liquor store where Boitumelo bought a six pack of Castle

Lite beers for accused number 3 and bought black label for himself. From

there they drove straight to Boitumelo’s house. On arrival, Boitumelo

connected the music system and played it inside the house. He gave

accused number 3 one of the bottles of Castle Lite beers that he had bought.

Whilst listening to the music, accused number 3 called him outside and

borrowed a R100.00 from him. He indicated that he wanted to purchase

petrol for the motor vehicle. Boitumelo promised to give him the money. He

mentioned that at the time accused number 3 had been busy on the phone.

He does not recall whether he initiated or received that call. He left him

outside and returned to the house. After some time, he gave accused

number 3 the R100.00 that he promised him, and accused number 3 left with

the Avanza.

119. Boitumelo explained that at the shop the accused was talking about a cell C

and MTN SIM card. According to his knowledge he was using MTN as the

service provider. When accused number 3 left, it was still in the morning.

He returned later in the afternoon at around 5pm. This time he came with

accused number 2, Frank Baxane. They spent some time at his place. At

some stage they went to buy additional alcohol. They left late in the

afternoon when the night started to set in. Those who left were accused

number 2 and 3 using the Avanza motor vehicle. He mentioned that, that

day he also saw accused number 5 who came to fetch accused number 3.

He was driving a Black car of the make of a Ford Figo. He managed to see

him, because he was sitting on the passenger seat of the Ford Figo and he

opened the window to call accused number 327. There was however

someone driving that he could not identify because it was a bit dark inside

the car. The Ford Figo motor vehicle followed the Avanza of accused

number 3 when they left.

27 On this aspect accused number 5 testified that he was in a City Golf that he bought for his son.

46

120. Exhibit 3 being a video footage of the cell phone shop was played. In the

video footage Boitumelo identified himself, accused number 3, as well as Jan

the taxi driver.

121. Under cross examination he mentioned that he started consuming alcohol

that morning before he went to that shop. He agreed that a certain Basil

Moeng also came to his place. Dubi Rooi Baaitjie was also at his place. The

lady named Mamikie was also present. It was pointed out to him that on that

day there was a lot of alcohol consumption as well as the smoking of what

they call “oka” pipe. Accused number 2’s version was put to him and most of

the time Boitumelo indicated that that’s not how he remembers. He however,

did not exclude the possibility of such happenings. He indicated that he at

some stage had a nap. The nap was occasioned by the drinking of alcohol

and the smoking of the oka pipe.

122. Mr Buthelezi in his cross examination asked him if he had seen the colour of

the cell phone that accused number 3 was using. He replied that it appeared

to have been a greyish or black phone and cannot remember its make. He

did not hear the type of phone accused number 3 told the shop keeper that

he lost. He further mentioned that from the shop up to when accused

number 3 was on the phone at his place he does not remember any phone

call that was made. Asked what time did he wake up, he replied that he

woke up around 8 pm. He was asked whether he was still awake when

accused number 3 arrived in the Avanza. He replied that he arrived before

he slept. Asked whether he was under the influence, he indicated that he

was moderately drunk. He mentioned that when the Avanza left it was

starting to be dark. It was put to him by Mr Buthelezi that accused number 5

arrived at his place with a black City Golf motor vehicle. He disputed that

aspect. It was put to him that the area around his place was dark. He replied

that there were spot lights or high mast lights in the area, which illuminated

his place.

47

123. Mrs Easthorpe on behalf of accused number 5 put to him that accused

number 5 came there in a dark blue City Golf. The witness replied that he

does not know that. She put to him that he cannot dispute that and he

agreed. It was further put to him that the time when accused number 5 left

that place was between 7pm and 8pm. The witness replied that it could be

possible. He indicated that the discussion between accused number 3 and

accused number 2 if they took place he did not hear them as he was not with

them.

124. The State called Ms Pamela Phindiswa Plaatje (Plaatje). She testified that

she does not know accused number 1. She knows accused number 2 very

well and they used to sing in the same choir at school where they both

attended. She knows accused number 3 well as she was a volunteer in the

ANC where he was involved. She also knows accused number 4 because

they once sat together with other friends on a social occasion. She also

knows accused number 5 as he was involved in the ANC activities when she

was a volunteer.

125. On 17 August 2016 at around 10:00 she arrived at the Kaleche’s home. Mrs

Kaleche was not present. She found her husband Boitumelo, Golo, Dize and

Dan. She sat with them drinking alcohol and smoking the oka pipe.

Boitumelo requested her to clean a sheep’s head and feet. The two are

commonly known as “aval”. She complied. After finishing, it was cut into

pieces. Golo started to prepare the wood for fire. He used a blunt axe he

borrowed from Martha’s place. Accused number 3 borrowed him his sharp

axe from the Toyota Avanza. Later Mrs Kaleche arrived. She shouted

whose car was parked there as she does not have a car. Her husband told

her to leave accused number 3 and others as they are his friends.

126. Later accused numbers 2 and 3 left. They had been sitting with them around

the fire. The two later returned accompanied by Basil who was driving a

black van. After some time accused number 3 and 2 left leaving Basil

behind. Later, accused number 3 returned with a bottle of Smirnoff 1818.

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Dize walked to a tavern called 1818 to buy beers. Boitumelo who had taken

a nap woke up. It was then decided that Dize be phoned so that he could

include Black Label beers to cater for Boitumelo. Dize said someone must

then come to help him carry the liquor. Accused number 3 offered his keys

and handed them over to Golo to use the Avanza and they left.

127. In the meantime, accused number 2 arrived. He told accused number 3 that

accused number 5 wanted him and handed the cell phone over to him. They

went a side and spoke on the phone. Tumi and Dize arrived. Accused

number 3 asked where the Avanza was. Golo said accused number 5 took

the keys and said his cars do not convey alcohol. Accused number 3 left

saying he is going to get his car. Accused number 2 remained behind. Later

accused number 3 returned with the Avanza. He was followed by a black

Ford Figo. Accused number 3 alighted from the Avanza and called accused

number 2. He stood up and left with accused number 3 in the Avanza. That

was the last time she saw them. It was already sunset.

128. Inside the Avanza was accused numbers 5 and 4 as well. She did not see

who was inside the Ford Figo as it was dark. She was seeing the Ford Figo

for the first time. Accused number 2 was wearing an orange jacket with

reflectors. He had gone home to change his clothes. When he left with

accused number 2 and returned with Basil he was still wearing the orange

jacket. However, when he left with accused number 3, he was now wearing

a long black coat. That was at the time accused number 2 handed the

phone to accused number 3 and said accused number 5 wanted to speak to

him.

129. Ms Plaatjie testified that on 24 August 2016 accused number 4 arrived with

Valdesh at the Kaleche home where she was with her sister, Mrs Kaleche.

Accused number 4 mentioned to them that accused number 3 was

requesting that they meet in Kimberley as they know that accused number 3

had been in their company throughout the night. They were expected to give

a statement to that effect and accused number 5 will provide transport to

49

convey them to Kimberley. Mrs Kaleche replied that she was not going to

take any decision without her husband and that he must return later. He

never returned that day.

130. Under cross-examination Ms Plaatjie was not sure of the various times as

she did not take note of the times. It was put to her on behalf of accused

number 3 that he was at the Kaleche home and he left around past 8 pm and

went straight home to sleep. He was not there at the Kaleche’s for the

whole night. She mentioned that she only saw accused number 4 in the car

and he never entered the premises. It was already sunset but the fire

illuminated the place to see the people around. She also mentioned that

accused number 5 was driving the Avanza.28

131. She further insisted that accused number 4 came with Valdesh during the

week and indicated that accused number 3 was due to appear in court the

following day.

132. Dineo Nation Kaleche (Mrs Kaleche) is the wife to Boitumelo who has

already testified in this case. She confirmed that on 17 August 2016 she

went to Kuruman with her children. She returned and arrived at home at

about 16:00. On arrival she found a Toyota Avanza parked in front of her

house. Inside the house she found her husband, accused numbers 3, and 2,

Sam Johanne, Mamikie Plaatje, Alridge Jonas and Dize Mokgoro. They

were all known to her at the time.

133. Mrs Kaleche requested Ms Plaatje (also known as Mamikie) to clean the

sheep head. The others were drinking alcoholic drinks. She told accused

number 2 and 3 that they are not used to coming to her place and asked why

they were at her place; that she does not own a car and they should remove

their car from her premises and leave. The two did not leave. She testified

that at some stage accused number 3 left and returned accompanied by

28 Reference was made to her statement, Exhibit W, to the police and some contradictions with her evidence. She also mentioned that there were omissions in her statement.

50

Basil Moeng. Basil later left. Sometime thereafter accused number 2 and 3

left. Later Dize Mokgoro went to buy more alcohol. Accused numbers 2 and

3 returned still using the Toyota Avanza.

134. Dize Mokgoro phoned Alridge Jonas from 21 Jump Street tavern and told

him that he had a lot of beers and needed some assistance. Alridge stood up

to leave. Accused number 3 offered him the keys to use the Avanza. Alridge

(Golo) took the keys and left. A few minutes later Alridge and Dize returned

carrying the drinks with their hands. Alridge reported that Juluka (accused

number 5) took the car keys from him telling him that his car does not convey

alcohol. Accused number 3 remarked that accused number 5 is “getting too

used to him” and that the car is also his and he is going to take it back. He

stood up and walked away. He returned driving the Avanza followed by a

black Ford Figo. Accused number 3 alighted from the Avanza and called

Accused number 2. The two got into the Avanza and left, followed by the

Black Ford Figo. She could not see clearly who was in the Black Ford Figo

because the windows were tinted. That was the last time she saw them. It

was already sunset.

135. By Wednesday 24 August 2016 she had already learnt from the News media

that accused number 3 had been arrested on allegations of the murder of a

councillor. At 16:40 or 18:50 accused number 4 came to her place

accompanied by Valdesh. Accused number 4 said to her that she had seen

what was happening on TV’s; that accused number 3 is accused of murder

and she knows very well that he was at her place. She agreed that he was

indeed at her place. She asked him why was he telling her all this. Accused

number 4 replied that accused number 3 told his lawyer that on the 17th he

was at Mrs Kaleche’s house and he wanted her to come and confirm that he

was at her place. He further said transport is not a problem because

accused number 5 will offer transport to convey them to Kimberley. She

replied that her husband was not present; that she did not want to get

involved because of the allegations she learnt surrounding his arrest.

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136. Mrs Kaleche’s statement to the police was handed up by Mr Setouto and

same was admitted as Exhibit “V”. A point was made that in her statement

she mentioned that accused number 4 told her that accused number 3’s

lawyer called him and said he wanted Mrs Kaleche to make a statement

stating that accused number 3 was at her place for the entire Wednesday the

17 August 2016, whereas when she testified in Court she said it was

accused number 3 who sent accused number 4 to tell her (Mrs Kaleche) that

she must make the statement to that effect. She confirmed that she was told

that it was accused number 3 who sent accused number 4 to her.

137. It was put to her on behalf of accused number 4 that he came to her

accompanied by Valdesh on Sunday 21st and not 24th; that he was to take

them to Postmasburg and then he came the following day on the 22nd and

she refused to go with them. She disputed what was put to her and

mentioned that on that day accused number 3 was to appear in court and

accused number 2 alighted from one of the taxis that had formed a motor

cade and asked them to join and they refused.

138. It was put to her that accused number 5 came to her place in a blue City

Golf. She insisted that she only saw a Ford Figo with tinted windows and did

not see the people inside.

139. The next witness is Rudolph Johannes Louwrens. He is Lieutenant-Colonel

in the South African Police Service attached to the Directorate of Priority

Crime Investigations stationed in Kimberley. He is the Commander of the

Sub- Component of the Organised Crime in Kimberley which is known as

National Bureau of Illegal Firearms Control and Priority Violent Crimes

(NBIFCPVC). He has thirty-five years’ service in the Police Service, thirty

years of which is investigation of serious crime such as murder and armed

robbery. The unit that he is attached to is commonly known as the HAWKS.

For convenience, I will refer to Lieutenant-Colonel Louwrens as Colonel

Louwrens. At the time of his engagement in this case he was holding the

52

rank of Captain. He testified that on the 18th August 2016 at around 10: 00 or

11:00 he was called to the office of Brigadier Mafalala. The later was at the

time second in command of the HAWKS structure in the Northern Cape. He

assigned him to undertake the investigation of an incident that happened in

Postmasburg. The same afternoon between 13:00 and 14:00. Colonel

Louwrens travelled to Postmasburg accompanied by Warrant Officer Van der

Merwe and Sergeant Moshe.

140. On arrival at Postmasburg they went to the Police Station. Colonel Louwrens

met Mrs Dora Baaitjie. He interviewed her and from the interview he learned

that a body of a male person that was found on the road to Groenwater was

of her husband, Mr Baaitjie. She further reported that her husband was

invited to a meeting which was to take place at 18:00 on 17 August 2016 at

Kolomela Hub parking area in Postmasburg. She also mentioned that the

meeting had to do with a job that was to be given to her husband totalling

R800 000-00. It was to be a paving work. She further reported that her

husband was supposed to be sworn in as a counsellor representing the

Democratic Alliance (DA) at the Danielskuil Local Municipality on the 18th

August 2016. He obtained the cell phone numbers of Mr Baaitjie from Mrs

Dora Baaitjie being: 061 300 2183. Mrs Baaitjie also informed Colonel

Louwrens that Mr Baaitjie took Mr Nouse along to the meeting that was to be

held at 18:00 on the 17th August 2016 because Mr Nouse had himself

registered to tender for work that is put to tender.

141. After this interview Colonel Louwrens had a discussion with Constable

Molelekeng. From Constable Molelekeng he learned that the body of Mr

Baaitjie was found on the road around Groenwater laying facing down with a

bullet wound on the back. He also learned that Mr Baaitjie’s Ford Ranger

van was found the morning of 18th August 2016 on an open piece of land

near the school in Postmasburg. The motor vehicle had a passenger on the

rear seat who happens to be Mr Nouse. The latter was injured and was

taken to hospital the same morning. From him two cell phones were found.

The finding of these cell phones led Colonel Louwrens to preliminarily

53

conclude that the motive of the offences was not robbery. In his experience

if it had to do with robbery as motive, at least the cell phones would have

been taken.

142. Colonel Louwrens was given a cell phone that was said to belong to the

deceased Baaitjie. On switching it on, he came across a message that was

sent to that cell phone on 17 August 2016 at 14:13. The message was sent

by a person identified as “Werk by i man”. The exact message read thus:

“Mr Baaitjies look I will give the job and its budget is R800 000 so you

mus qoute arround that sum. And I must get 10% of that, but its

between me nd u nd pls come alone as this can’t be revealed to anyone

else I could lose the job, we meet at 18:00 at Kolomela business hub

parking. Regards Jonathan.” The message was handed in as Exhibit K,

being the screenshot of the cell phone, depicting the message.

143. Colonel Louwrens established further that the person described as “Werk by

i man” used the phone number that was registered on the phone book of this

phone, namely +2762 370 0114. The screenshot of the Contacts was

admitted as Exhibit L. It became clear to Colonel Louwrens that this number

had contact with the phone of Mr Baaitjie before this message was sent

because of the letters and number +27 that preceded the cell phone number

of the sender, “Werk by i man”. +27 is an international code for South Africa

for cell phone connection numbers.

144. Colonel Louwrens also met a female member of the South African Police

Services, Upington, being Captain Ramela attached to the Crime Intelligence

Unit. He advised her that he is now the investigating officer of the case and

that she should be aware of their task as crime intelligence which is to

provide him with whatever relevant information for the investigation of the

case.

145. According to Colonel Louwrens the information on the cell phone of the

deceased appeared to him to be an important lead for his investigations. He

54

returned to Kimberley with the cell phone and prepared his application in

terms of section 205 of the Act. The purpose was to get authority from the

Director of Public Prosecutions (DPP) and the authority of the Magistrate for

him to contact the service provider Cell C to provide the call data and other

relevant information for the cell phone number that sent a message to the

deceased’s cell phone. He obtained the Magistrate’s authority between

18:00 and 19:00. He immediately forwarded his request to Cell C. That

same evening Cell C provided him with documents containing the

information he requested.

146. From the information received from Cell C, he discovered that the message

that was sent to the deceased Baaitjie’s cell phone, was done through a

Nokia N70 handset. According to the witness there were two other cell

phone numbers which had been used on the said Nokia N70. One of those

numbers was registered (RICA) in the names of accused number 3, being Mr

Magawu. The second number that was used in the handset Nokia N70 was

number 082 667 6133 which was serviced by Vodacom Network. Colonel

entered the said number on his personal cell phone and it immediately

indicated the name Ash. He then remembered that he received a call-back

on 15 August 2016 from this number and he registered it on his cell phone as

Ash. The said call-back that he received on 15 August 2016 had to do with

an investigation he was busy with at the time. He requested one of the

suspects involved in that investigation to make a call to someone using his

cell phone. That person later called Colonel Louwrens’ cell phone using that

number. He concluded that he was returning the call with a different number.

The reason he registered it as Ash was because he already had a person a

person registered as Ashley and to avoid confusion he did not register it as

Ashley, but Ash.

147. Colonel Louwrens thereafter checked the WhatsApp profile picture attached

to the number of Ash on his cell phone. It produced a photograph of a

person. He noticed that, that number had been active on the WhatsApp

message system on 6 August 2016 at 01:17. The photograph that it

55

produced was that of accused number 3 who was already known to him.

Colonel Louwrens knew him because of his previous investigations on an

unrelated matter. The photograph was admitted as Exhibit M. The very

same evening Colonel Louwrens drove back to Danielskuil.

148. In the early hours of 19 August 2016 at around 12h30 towards 01h00

Colonel Louwrens together with other members of the police went to

accused number 3’s home at Sloja in Danielskuil. He could not find accused

number 3 at his home. He only found his alleged girlfriend who claimed not

know where accused number 3 was. Because at that stage Colonel

Louwrens had information that accused number 3 was using accused

number 5’ (Mr Legodu) motor vehicle, he proceeded to accused number 5’s

place at around 01h05 the same morning. At this stage accused number 5

was not a suspect in the case. Accused number 5 told Colonel Louwrens that

he did not know where accused number 3 was. Colonel Louwrens asked

him the cell phone numbers that accused number 3 was using. He

mentioned 2 numbers namely, 0818011667 and number 0826676133.

Colonel Louwrens asked him to phone accused number 3. He did, but his

phone was off. He asked accused number 5 when last he had contact with

accused number 3. He replied that he last contacted him on those numbers

on Wednesday, 17 August 2016. Colonel Louwrens requested accused

number 5 to accompany him to the offices of the Detectives in Danielskuil so

that he could obtain his statement relating to his contact with accused

number 3 on the said date using number 082 667 6133. Accused number 5

agreed and at 01h50 that morning his statement was completed.

149. Because of some information that came to the attention of Colonel

Louwrens, he that very morning at 06:00 went to the deceased, Johannes

Baaitjie’s home to look for his son Jody Baaitjie and Justin Moses. The

information he received made him to suspect that accused number 5 could

be involved in this case. The information he received from Jody Baaitjie and

Dunston Moses was, inter alia, to the effect that on the 17th August 2016

accused number 5’s Wildtrak Ford Ranger van was seen passing the

56

deceased Baaitjie’s home at high speed and that later his Avanza was also

seen, driving passing the same street at high speed driven by accused

number 3. Colonel Louwrens had also noted that one of the two cell phone

numbers provided to him by accused number 5 as his own numbers, had

contact with the suspect number that sent the message to the deceased

Baaitjie.

150. Colonel Louwrens went back to accused number 5 and confronted him with

the information that he had obtained. With the consent of accused number 5

he took possession of his Ford Ranger Widltrak van as well as the Toyota

Avanza which was being used by his brother at the time. The two vehicles

were inspected by the forensic officers and nothing of significance that could

take the investigations of this case forward could be found.

151. Colonel Louwrens arranged with Constable Molelekeng to take him to the

spot where the body of Baaitjie was found on the road in the area of

Groenwater. At 09h40 they met at that place. He noticed that there was a

patch on the ground of what appeared to be blood. He requested Warrant

Officer Van der Merwe to look for a stick that he could use to scratch on the

blood patch to see if a projectile could be found. Warrant Officer Van der

Merwe obliged and a 9mm projectile was found. Colonel Louwrens arranged

that Captain McAnda should come to the scene so that he could take

photographs of the projectile on the scene. As he was waiting for Captain

McAnda to come, he received a telephonic report from Warrant Officer

Coetzer that accused number 3 had presented himself at the Danielskuil

Police Station. Colonel Louwrens together with Warrant Officer Van der

Merwe immediately left for Danielskuil, leaving Sergeant Moshe at the scene.

On arrival in Danielskuil they went straight to the Detective offices. They

instructed the TRT Unit to fetch accused number 3 from the police station

and bring him to the Detective Offices where he was.

152. Colonel Louwrens met accused number 3 at 11h00. At this stage of the

evidence Mr Cloete placed it on record that Mr Buthelezi, appearing on

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behalf of accused number 3 intends objecting to the evidence relating to the

interview he had with Colonel Louwrens and requested the Court to give him

the opportunity to do so. Mr Buthelezi submitted that his instructions are that

accused number 3 denied ever making any “admission statement” to Colonel

Louwrens. That he admits that he appended his signature on that “admission

statement” but he could not read what Colonel Louwrens wrote on the

statement; he told Colonel Louwrens that he will make a statement in the

presence of his attorney and that the only thing that he told Colonel

Louwrens was about his whereabouts on 17 August 2016. The court mero

motu gave Mr Buthelezi an opportunity to approach accused number 3 to

ascertain whether that was all the basis of his objection to the evidence and

he did so. It became clear that the objection only related to the credibility of

the witness on what transpired between him and accused number 3 and

what he told him. It did not relate to the admissibility of the evidence.

Credibility can be challenged through the normal process of cross-

examination and evidence. The prosecution was consequently allowed to

tender the evidence.

153. Colonel Louwrens testified that he told accused number 3 that he was

arresting him for the murder of Johannes Baaitjie who was allegedly killed on

17 August 2016 on a road in Groentwater, and also charge him for attempted

murder of Mr Nouse who was found injured in a van next to a school in

Postmasburg on the same day. He further told accused number 3 that Mr

Nouse was still alive at the hospital and I quote “en hy het gepraat” meaning

that he told what happened. He knew that he was not telling accused

number 3 the truth when he said that Nouse had told everything, but merely

used the lie as an investigation technique. He mentioned that accused

number 3 did not react. Colonel Louwrens then explained his constitutional

rights relating to an arrest in detail. Accused number 3 elected not to engage

the services of a legal representative. He however told him that “I think I

must tell you where I was that day”. He asked him if he was prepared to

reduce that to writing. Accused number 3 declined to make a written

statement but preferred to tell him.

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154. According to Colonel Louwrens accused number 3 informed him that he lost

his cell phone. He was not sure whether it was on a Saturday or on

Wednesday. It was however a Samsung cell phone. On Wednesday morning

he went to a shop selling cell phones next to AMC funerals. He found the

younger brother to the owner of the business. He reported to him that he

had lost his cell phone and that should anyone come there selling a cell

phone they should immediately contact him. He gave them a number

082 667 6133. As he was about to leave the shop Boitumelo who had come

to buy a Music System called him. Boitumelo asked him for advice on the

Music System to buy. He advised him to buy a stronger (powerful) one,

referring to the speakers. He conveyed Boitumelo’s Music System in the

Toyota Avanza motor vehicle. On the direction of Boitumelo they stopped at

DK Liquor store. Boitumelo bought him a 6 pack of 440ml Castle Lite cans.

From there they went to Boitumelo’s place of residence. He drank one beer

and as he felt hungry he went to his place to look for some food. He could

only have a piece of polony as there was no bread and returned to

Boitumelo’s place. He found Tumi, also known as Golo, and someone else

he does not know his name and Dan. Mamikie who is Golo’s girlfriend was

also there busy cleaning an “aval”. Accused number 3 drank all 5 beers

that he had left. He borrowed Golo an axe from the Toyota Avanza motor

vehicle for him to chop some fire wood. Basil arrived. Accused number 3

requested Basil to buy him a case of Castle Lite 660ml beers. He said he did

not have cash. They went to Ace’s Bar in an Avanza driven by accused

number 3. Tshame (accused number 2) was present. Basil drove his black

Corsa. They arrived at Ace’s place at around 17h15 and found the liquor

store was temporarily closed. They then left for 21 Jump Street which is also

a tavern belonging to Ace. At 21 Jump Street they called for Lebogang who

came after 10 minutes. Basil spoke to him aside. Tshame said to Basil he

should buy a Smirnoff 1818 bottle plus a 12 x 660ml Castle Lite beers. From

there they returned to Boitumelo’s place. Going there was accused number

3, Tshame, Basil and Lebogang. They were at Boitumelo’s place from after

5 pm and he was there until late that night. He arrived at his residential

59

place that Wednesday at 12h53, which was past midnight to 1 am. His

spouse was at home and she opened the door for him.

155. Colonel Louwrens asked Accused number 3 about the cell phone he was

using. He gave him two numbers. One was 071 850 9434 and 082 667

6133. He asked him if he had any other number that he used and he replied

that he did not have. He asked him again when did he loose his Samsung

cell phone and he replied that it could be Saturday after the elections. He

further asked him what phone instrument he used after losing a Samsung

phone. He indicated that he was using a Pep Stores phone which is a

Mobicell. He asked him where that phone was and accused number 3

indicated that it was also gone. He further indicated that from Monday he did

not have a cell phone. He asked him if there is any other thing he wanted to

mention and accused number 3 indicated that the previous day, more or less

past 9, or past 10 in the morning the Municipal Manager informed the whole

community in the hall that Mr Baaitjie was killed in or around Groenwater.

Colonel Louwrens asked him about the exact date he lost his phone. He

also gave him a calendar to confirm the date. Looking at the calendar he

was not sure if it was a Friday or a Saturday. He then said it was in fact the

morning of the Saturday, the 12th August 2016. He then said “no” and

apologised and said it was Saturday the 5th in the morning. Colonel

Louwrens asked him if he was willing to put his explanation in a statement

and he agreed. Colonel Louwrens was taking notes as he was speaking to

accused number 3. The notes were admitted as Exhibit “N”. There are three

pages of Exhibit “N” which we marked A, B and C respectively.

156. A written Warning Statement of accused number 3 was admitted as Exhibit

“O” and the typed version thereof as Exhibit “O1”. In the statement

according to Colonel Louwrens, accused number 3 indicates that he was not

involved in the incidents of that day. That day referring to Wednesday 17

August 2016, and that he was at his friends’. He only heard the following

day at the proposed swearing in of Counsellors from the Municipal Manager

of the commission of these offences. He further indicated that as a state

60

official he is prepared to assist the state to track down the offenders. He is

able to assist in the investigation because in their offices they do gain some

information from the community about perpetrators of crime.

157. Colonel Louwrens asked him how many cell phone numbers he used in the

past month of August 2016. He replied that he used two. Asked about the

numbers he used he mentioned 082 667 6133 and 071 850 9434. He asked

him to describe the handset in which these numbers were used during

August 2016. He replied that in the Samsung Grand New Plus, Nokia and

he can’t remember the name of the other old Nokia and also the Mobicel Cell

phone. Asked whether it was only the three handsets, he replied in the

affirmative. Asked whether he used two SIM cards in all three handsets he

replied that excluding the MTN 071 850 9434 as it was lost with the

Samsung Grand New Plus handset. Asked about the other SIM card, he

replied that 082 667 6133 was used most of the time in the Nokia and the

Mobicel handset. Asked whether the number 082 667 6133 was ever used

in the Samsung Grand New Plus handset he replied that he thinks so.

Asked when he lost the Samsung Grand New Plus he replied that he

suspects that it was taken out of his pocket at a Tavern on the 5th of August

2016, Saturday evening. Asked whether he would like to add anything, he

said “No Captain,” and that on Monday 15th August 2016 the Nokia handset

was taken or stolen from the Avanza motor vehicle belonging to accused

number 5 which he was using during the time of the elections. Asked where

he slept the night of the 18th August 2016 he replied that at the hotel. Asked

who booked the hotel he replied that a girlfriend named Motlalepule

Tshabisile booked that room which was paid by accused number 5. Present

at the hotel was a friend of “Itse” Itshenkeng Rooi. When Colonel Louwrens

told him that on 19 August 2016 around 01:05 in the morning he was at

accused number (5), Mathews Legodi’s place and that the latter could not

indicate where he was, accused number 3 replied that number 5 did not

know that he slept at the hotel. He asked him when last he had a cell phone

or used a cell phone. He replied that it was from Monday the 15th August

2016. Asked if he still wanted to say something he responded that he also

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borrowed an amount of R300 from one Charles who is the person who

owned a van in the previous case that they had. He indicated that he was

with him as well as Tshame. He mentioned that he told them that he heard

that a Counsellor had been murdered and that the other person, that is

Tshame, replied that he had already heard about it the previous day. All

these happened on Friday the 19th of August 2016.

158. On Monday the 22nd August 2016 accused number 3 appeared before court

at Danielskuil. The same day, Colonel Louwrens went to the cell phone shop

that accused number 3 mentioned to him that he went to on the 17th August

2016. On arrival at the cell phone shop he noticed that there were

surveillance cameras installed and asked the owner, Mr Ali whether they

were in a working condition. Mr Ali replied that they were. He requested Mr

Ali to play the tapes of the said CCTV surveillance cameras for the 17th

August 2016. He identified that shop in Exhibit E.

159. Mr Ali played the tapes for Colonel Louwrens. He observed that accused

number 3 entered the shop at 09h20. He approached Mr Ali at the counter.

He spoke to him and thereafter went back to the entrance of the shop. He

met a person later identified as Boitumelo who was busy with a transaction

relating to speakers. Thereafter accused number 3 returned to the counter,

spoke to Mr Ali. Mr Ali was observed bending behind the counter and

holding a string of bluish items from which he cut one piece and handed it

over to accused number 3 and kept the rest. Colonel Louwrens asked Mr Ali

to show him the items that he kept back. He complied and gave him a string

of 3 SIM cards attached to one another. The incident of handing over to

accused number 3 of an item from the string happened at 09:30:15.

Immediately thereafter at 09:30:56 accused number 3 is seen taking out a

cell phone from his pocket. At 09:31:09 he is holding the cell phone on his

right hand and placed it on his right ear and thereafter he put it back into his

pocket and moved towards the counter and thereafter they left the shop

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together with Boitumelo29. This incident was interesting to Colonel Louwrens

because he was told by accused number 3 that he did not have a cell phone

on the said day. Accused number 3 left the shop at 09:32:40.

160. Upon studying the 3 SIM cards Colonel Louwrens observed the following: All

three SIM cards that he received from Mr Ali were serviced by Cell C. The

suspect number that sent the message to the deceased Baaitjie was also

serviced by Cell C. The serial numbers of that cell phone that sent the

message which is 062 370 0114 had the serial number 9914 101 50590. Of

importance are the 3 last numbers 590. The other three SIM cards that he

received from Mr Ali had similar numbers except the last three numbers.

The one ended with 587 the other with 588 and the other with 589. They

followed a sequence. The conclusion was, therefore, because the one that

was used to communicate with the deceased Baaitjie’s cell phone ended with

590, it must have been the fourth from the package of four as it

chronologically followed the numbers left at the shop. Also of significance is

the fact that at about 09:58 on 17 August 2016 the same cell number made a

telephone contact with that of Mr Baaitjie and the call lasted for 181 seconds.

This means at the time when the number had a telephone contact with Mr

Baaitjie it was 09:58. On the video that was played accused number 3 left

Mr Ali’s shop at 09:32:40. The SIM cards received from Mr Ali were handed

in as Exhibit 8.

161. After these events Colonel Louwrens sent Warrant Officer Nortje to the cell

phone shop to download the video material that he viewed.30 The video

material was viewed in Court and admitted as Exhibit 3. What we observed is

consistent with what Colonel Louwrens narrated to the Court. Similarly,

Warrant Officer Nortje downloaded the video material at Kolomela Hub.

29 Accused number 3 claims that he was receiving a call from a clerk from the police station called Larry who forgot his phone in the Avanza when he gave him a lift to work. However, a call made at this time appears on the call data of his phone which he claims got missing on the 15th August 2016. 30 Detective Warrant Officer Nortje confirmrd that on 22 August 2016 he downloaded data from the CCTV cameras at the cell phone shop and handed same to Colonel Louwrens as part of the investigations. He downloaded it as it was stored and did not do anything to it such as enhancing it. His evidence was not challenged.

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162. Colonel Louwrens testified that he proceeded with his investigations by

launching an application in terms of section 205 of the Act to obtain

information/data relating to cell phone number 062 370 0114 (the suspect

number) from Cell C. Upon receipt of the relevant documents from Cell C he

studied the information and established that cell phone number 064 6005

668 had contact with the suspect cell phone number 062 370 0114. In

particular, he realised that on 17 August 2016 that number ending with 5668,

moved from Kuruman to Danielskuil and from Danielskuil to Postmasburg

and later from Postmasburg to Danielskuil and Groenwater and later to

Kuruman. This information was obtained from Cell C records relating to cell

phone number 064 600 5668 which was as per RICA information registered

in the name of Tiro Lekgotla (section 204 witness). At this time Mr Nouse

had sadly passed on 23 August 2016 and as a result Colonel Louwrens was

investigating a case of double murder.

163. Colonel Louwrens requested Lekgotla to come to his office. Lekgotla

testified and his evidence as to how he happened to come to Colonel

Louwrens office will be clarified at a later stage. At this stage it suffice to say

that he went to Colonel Louwrens’ offices accompanied by his attorney Mr

Butch Schoeman. Colonel Louwrens asked him if he knew Mr Magawu,

accused number 3 and Lekgotla denied any knowledge . He was shown the

cell phone records and warned that he was not playing open cards. His

attorney Mr Schoeman requested to be given an opportunity to consult his

client in private. He was given the 30 minutes he requested. An office was

arranged for their private consultation.

164. Later Mr Schoeman reported to Colonel Louwrens that Lekgotla was

prepared to tell everything that happened. Lekgotla told Colonel Louwrens

what he knew about the case. Colonel Louwrens was satisfied with his

narrative and decided to make a strong recommendation to advocate

Barnard of the Director of Public Prosecutions, Northern Cape, that Lekgotla

be used as a witness in terms of section 204 of the Act. He believed that he

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would assist in the investigation of the case. Authority was duly granted for

Lekgotla to be used as a section 204 witness. As a result, a written witness

statement was obtained from him. The statement lasted from 11h30 until

18h30 in the evening. During his statement mention was made of Mr

Mphondomisa who is accused number 4. In addition, mention was made of

a firearm and an amount of R20 000 which was to be paid to Lekgotla.

165. On 3 September 2016 Colonel Louwrens engaged Lekgotla to meet accused

number 4 (Mphondomisa) to explore the possibility of getting hold of the

firearm which could have been used in the commission of the offences as

well as the amount of R20 000 which was to be paid to him for his role in the

crime. An application was made to Mr Barnard in terms of section 252 of the

Act. The reason for that was that Lekgotla should lawfully possess the

firearm should he successfully obtain it from accused number 4 or any other

person connected therewith. At that stage Lekgotla had also indicated that

he had received an amount of R1000.00 through an e-wallet with cell phone

particulars that made the transaction through an FNB account of Mr Legodu,

accused number 5. As to what transpired between the alleged meeting

between Lekgotla, Mphondomisa and Legodu, will become clearer when

dealing with the evidence of Lekgotla. Suffice to say that the police gave him

a device to record the activities at that meeting. Lekgotla also used his two

cell phones to record the discussions he allegedly had with accused

numbers 4 and 5.

166. As a result of the information obtained from Lekgotla and the discussions he

allegedly had with accused 4 and 5, on 6 September 2016 at 06h00, Colonel

Louwrens attended at accused number 4’s home in Sloja in Danielskuil and

arrested him in connection with the two murders. Accused number 4 denied

his involvement in the case. Colonel Louwrens testified that he asked him

about the cell phone number he used at the time. He indicated that he could

not remember the number out of his head. There was a dark blue Golf motor

vehicle on the premises which he said it belonged to accused number 5. He

reported that he was supposed to travel to Kimberley with the said motor

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vehicle to attend to what accused number 5 had sent him to do. On the

same day, 6 September 2016 around 18h25, Colonel Louwrens went to

accused number 5’s place and arrested him in connection with the two

murders. Accused number 5 disputed his involvement in the two murders.

167. From there Colonel Louwrens went to accused number 1, Richard Hasane’s

place where he found 2 male persons. Accused number 1 was absent. He

was phoned to come to his place by Colonel Louwrens. He told him he was

there to arrest him in connection with the two murders. He arrived there

driving a blue Audi with the number plate “Bongz”. There was also a BMW

and a Golf parked on the premises. Colonel Louwrens asked him where was

the Jetta that Lekgotla said belonged to accused number 1’s girlfriend which

was used to transport people from Danielskuil to Postmasburg and back.

Accused number 1 confirmed that the vehicle belonged to his girlfriend and

was not available at that stage because his wife drove it to Eastern Cape.

Asked where in particular in the Eastern Cape, he, according to Colonel

Louwrens, changed and said it was at Hotazel at the mine where the

girlfriend was working. Colonel Louwrens testified that they agreed to go to

Hotazel. Accused number 1 directed them to the place. Along the way he

remarked that: “ek het nie skotte gehoor nie maar `n mens was in die boot

gelaai in Postmasburg. Buite Postmasburg het daardie reg gekry om uit die

boot te kom in die ry, dat hy en Lekgotla daar besluit het om weg te ry.” By

this he meant that he did not hear the shots; the person was loaded in the

boot in Postmasburg. Outside Postmasburg he got it right to get out of the

boot whilst driving and he and Lekgotla decided there and then to drive

away. Asked about the fired cartridge and holster that he destroyed and the

fired cartridge that he flushed, he denied anything of the sort. Along the way

accused number 1 took Colonel Louwrens to the place where his girlfriend

resided. She was present and confirmed that she had a Jetta motor vehicle

which she showed to Colonel Louwrens. She was shocked to hear what

happened when told by Colonel Louwrens. With the consent of the owner,

Colonel Louwrens seized and removed the Jetta motor vehicle for further

investigations.

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168. Colonel Louwrens requested Constable Sekgeri of the Local Criminal Centre

to take the Jetta some photos. She also took pictures of the boot as well as

the rear seat with the back rest opened as Lekgotla told him how it was

opened to shoot at the person who was in the boot. The photos were

admitted as Exhibits “P”.

169. Warrant Officer Fortuin took some swabs for DNA investigations and were

sent to the Forensic Science Laboratory from the Jetta. The results were that

no DNA material could be found. This was surprising to Colonel Louwrens

who directed that they should do further tests including taking out the carpet

in the boot and send it for analysis. This was done and the results were

positive. He further testified that accused number 1 told him that he took the

Jetta for a wash. He took him to the place where it was washed in Kuruman.

However, a young man who washed it could not be found among the group

that was at the car wash place.

170. Colonel Louwrens testified that he noticed accused number 5’s number

0826171424 had contact with the suspect number on 17 August 2016 at

18:19. He was definitely sure that the number belonged to accused number 5

because it is one of the cell phone numbers he disclosed to him the early

hours of the 19th August 2016 when he was looking for accused number 3 at

his place. He further studied the data relating to accused number 5’s number

0714494322 and noticed the following: the number had contact with

0827610085 thirteen times on 17 August 2016 from 17:58. He then

successfully processed an application in terms of section 205 of the Act. By

this time, he had already learnt from Lekgotla that there was someone else

who accompanied them to Postmasburg on 17 August 2016.

171. He then studied the data relating to 0827610085 he received from the

network provider. He found that the number was in Danielskuil on the 17th

august 2016. However, at 19:30 it was within the Postmasburg tower

coverage area. At 19:56 to 20:26 it was serviced by Groenwater tower. The

time 19:56 was about the time when Lekgotla was in Groenwater. The

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registration particulars (RICA) of the number was in the names of Marie

Theteme.

172. On 5 October 2016 Colonel Louwrens went to Marie Theteme. She

confirmed that the number was registered in her names the year 2011 and

ever since it was used by accused number 2 who was her boyfriend at the

time. On 5 October 2016 Colonel Louwrens visited accused number 2 at his

place and arrested him. He denied his involvement in the case. He obtained

the number of the cell phone that he had in his possession. He found two

more cell phones in his house. He said one of the cell phones belonged to

his girlfriend Masego Pholo. He asked him where his number 0827610085

was. He replied that he lost it about three to four months ago. According to

Colonel Louwrens that number was already known to him. It happened that

on 25 April 2016 he met accused number 2 at Danielskuil detective branch

offices. Accused number 2 arrived driving a white Golf motor vehicle

belonging to accused number 3. He asked him his particulars and he

provided him with his names and the cell phone number. He noted them in

the docket he was handling at the time. Accused number 2 was not a

suspect in that case which is unrelated to the case under discussion.

173. Having learned from accused number 2 that Masego Pholo was employed at

Idwala mine, Colonel Louwrens went to look for her. He asked her what was

the cell phone number of accused number 2. Her immediate response was

that he lost his phone three months ago. He laughed and said when he

arrested him he was having a cell phone in his possession and she can just

as well disclose it. She agreed to accompany him to the detective offices in

Danielskuil. With her consent he scrolled her cell phone and noticed that she

had contact with cell phone number 0827610085. He asked her whose

number it was and she replied that she does not know. He said to her that he

does not believe that she does not know the number when there were

several contacts with it. He requested Constable Horing who was present to

explain to her in Setswana what he was saying. Ms Pholo made an about

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turn and said she was taking her chances and said the number belong to

accused number 2.

174. Later an identity parade was arranged for accused number 2. The one

arranged for 17 October 2016 did not take place and was rearranged for a

later date. A sixth person was also arrested. As indicated charges against

him were later withdrawn because the witness who implicated him, Bricks

Pholo died.

175. Lekgotla later accompanied Colonel Louwrens for pointing out at various

places in Danielskuil, Postmasburg and Groenwater. Colonel Louwrens

conducted tests at Groenwater where the body of the deceased Baaitjie was

found and at the field next to the school where the deceased Nouse was

found. He used his phone and of another police officer to make calls from

these points. He thereafter obtained records of these calls from the service

providers Vodacom and Cell-C. They showed that calls made from those

points were covered by the towers covering those areas and were

operational.

176. On 25 November 2016 it came to the attention of Colonel Louwrens that

Warrant Officer Henk Van der Merwe was to obtain a statement from one of

the witnesses Aruna Rossouw. The latter reported that an irregularity

happened at the instance of Warrant Officer Van der Merwe which would

have the effect of compromising the integrity of the investigations. It had to

do with a CD that had some recordings which she was to be send to Pretoria

for transcription. Warrant Officer Van der Merwe was to obtain her affidavit

as part of the so-called chain evidence. The CD was not contained in a

forensic bag. Despite that, Warrant Officer Van der Merwe prepared her

statement to reflect that it was in a forensic bag and sealed. Unimpressed by

his conduct, Colonel Louwrens reported him to the acting commander at the

time so that he should be removed from the investigations of this case with

immediate effect. He was immediately taken out of the case.

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177. In the cause of the investigations Colonel Louwrens checked whether any of

the accused had a licensed firearm. None of them had been issued with a

licence to possess a firearm. Colonel Louwrens testified that according to the

information he received accused number 3 was the branch secretary of the

ANC in Danielskuil. He was also employed as an Administrator at the ANC

offices at the time. He was also one of the ANC candidates in the local

elections which were held in the first week of August 2016. He was

contesting Ward 2 in Sloja. The information he received at the time was that

accused numbers 2 and 3 were volunteers assisting the ANC in the

elections. Former accused number 6, Mgcera was also a candidate and a

councillor, and he was a candidate for being the Mayor if the ANC had a

majority control of the council in Danielskuil. Colonel Louwrens mentioned

that he checked whether accused number 5’s Toyota Avanza and Ford

Ranger Wildtrak were fitted with tracking devices to check their movements.

They were not installed with any tracking devices.31

178. From the cell phone record of the deceased Baaitjie Colonel Louwrens

noticed a number that had contact with it and he followed the number up. On

the 7 November 2016 he went to Upington to see the person who was using

that number. The following day at 08:00 he met Colonel Ramela in her office.

She explained to him that that activity was when she forwarded the message

from the cell phone on 18 August 2016 when she was at the scene for further

investigations. Colonel Louwrens requested her to provide him with a

statement to that effect. She emailed the statement on14 November 2016.

179. Exhibit 4 marked “Street view to the left” at Kolomela Hub in Postmasburg

was played in Court.32 At 18:10:42 a van with a DA sticker on the right hand

door is seen moving on the road and turned towards the trees. It parked at

31 The state tendered the evidence of Ms EOUDIA CHADINHA whos was the chief financial officer at Kgatelopele Municipality. Her evidence related to tenders awarded to and payments made to accused number 5 during the period prior 17 August 2016. The information is contained in a letter to the SAPS admitted as Exhibit J. The total amount paid to him for services rendered is R20 232 864. 08. Her evidence became common cause. 32 Detective Warrant Officer Nortje confirmed that he downloaded the video footage from several CCTV cameras at Anglo-American offices and handed it to Colonel Louwrens. It was footage from several views from the street admitted as Exhibits 4 to 6. These were also not challenged.

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18:02:43. It is identified as belonging to the deceased Baaitjie. It made a U-

turn at the pepper trees.

180. Exhibit 6 marked “Street view straight” was also played in Court. At 19:08:22

a Jetta motor vehicle is seen moving in the area. The second clip on Exhibit

6 between 19:15 to 19:15:45 is the Ford Ranger van with a DA sticker on

right hand side door belonging to the deceased Baaitjie.33

181. Colonel Louwrens testified that he obtained some documents having the

handwriting of accused number 5 from Kgatelopele Municipality. The aim

was to send them for forensic analysis with a document he obtained from

Lekgotla allegedly having accused number 5’s handwriting. They were sent

under a covering letter admitted as exhibit Q.

182. I now pause to deal with the evidence of Colonel Louwrens relating to the so-

called cell phone and call data. He made several applications to the cell

phone network providers to provide information on specified dates for certain

cell phone numbers. He processed the applications in terms of the procedure

and authority prescribed by section 205 of the Act to the Director of Public

Prosecutions and to Magistrates who authorised the subpoenas to be served

on the network service providers to officially provide the data.

183. The data provided by the cell phone providers were contained in stacks of

documents. For the convenience of his investigations and for his evidence to

be systematically presented to Court, he prepared a summary of the

information for each relevant cell phone number. The report was admitted as

Exhibit R. I have no doubt that his summary was not only helpful to the

Court but to all the parties concerned. It obviated the necessity of having to

trawl through voluminous documents with fine print. There also were

documents relating to RICA indicating in whose names are the different cell

phone numbers involved were registered.

33 These clips indicate that the Ford Ranger and the Jetta were at the Kolomela Hub at the same time.

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184. There are technical terms used in the cell phone data environment which

were explained by Colonel Louwrens as well as witnesses from the network

service providers and Mr Moller, formerly of the SAPS. These terms will be

dealt with in the evidence of Ms Du Plessis from a service provider later in

this judgment.

185. First I deal with the deceased Baaitjie’s cell phone number 0613002183.34

Though it was not registered in his name, it is common cause that he is the

one who used it. On 10 August 2016 at 08:07:07 accused number 3’s

number 0826676133 called the deceased number for 150 seconds. The

deceased was serviced by a tower in Danielskuil. On 17 August 2016 the

suspect number 062 3700 114 called Baaitjie’s number at 09:58:54 and the

call duration was 181 seconds. At 10:49:48 the deceased’s number called

the suspect number for call duration of two seconds. At 12:51:59 the

deceased number called the suspect number for three seconds. At 14:21:20

and 14:21:23 the suspect number send an SMS to Baaitjie’s number who

was in Danielskuil at the time. The same time is reflected in the call data of

the suspect number as 14:21. However, the time reflected on the phone of

Baaitjie is 14:13. According to Colonel Louwrens this means that Baaitjie’s

time on the phone was out by eight minutes because the time to be relied

upon is the call data time which is provided by the network service providers

which is standard and is always accurate. The two cell phone numbers were

serviced by the Danielskuil tower.35

186. At 17:27:20 the suspect number called Baaitjie’s number and call duration is

16 seconds and both numbers were serviced by Danielskuil tower. At

18:14:07 Baaitjie’s number contacted the suspect number with call duration

of 45 seconds. Baaitjie’s number was now serviced by Postmasburg tower.

The suspect number was at the time serviced by Danielskuil tower. At

18:38:04 the suspect number contacted Baaitjie’s number for call duration of

34 Exhibit R page 3 to 15. 35 This message came out to be the controversial one calling him to attend a meeting in Postmasburg in relation to a tender.

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14 seconds. Baaitjie’s number was within the Postmasburg tower coverage

and the suspect number was within Danielskuil tower coverage. At 19:15:15

Baaitjie’s number contacted the suspect number for two seconds still within

Postmasburg tower coverage. At 19:22:53 Baaitjie’s number contacted the

suspect number for a call duration of 48 seconds. Of significance both

numbers were now serviced by the Postmasburg tower. Furthermore, the

activity before this one on the suspect number’s statement was at 18:48 and

it was serviced by the Danielskuil tower36.

187. On the same 17 August 2016 at 19:26:41 Baaitjie’s number called the

suspect number for call duration of seven seconds. Both numbers were

within Postmasburg tower coverage area37. At 19:28:13 the suspect number

made a call to the number of the deceased, Baaitjie and the call duration was

18 seconds. The number of Mr Baaitjie was serviced by the Postmasburg

tower and so was the suspect number. The activities that followed on the

call data of the deceased number after 19:28 are CFMTC which is an

indication that either the phone was off or the phone was not being

answered. On the 18 August 2016 there was an activity on the deceased

number at 13:21:15 and 13:21:19 which indicates an outgoing short

message service (SMS). According to Colonel Louwrens this indicated that

the message was sent to the phone of Captain Ramela of the Crime

Intelligence Unit. It will be remembered that when Captain Ramela testified

she also confirmed that she received the message that was on the deceased

cell phone to herself at the scene. There is also an activity on the deceased

phone on 17 August 2016 at 19:04 being a call made from the deceased

Baaitjie phone to 078 122 1185. This activity, according to Dora Baaitjie, is a

call she received from the deceased when he reported to her that he was still

waiting for the person he was supposed to meet regarding the tender. There

was another call that was made from the deceased’s phone to the 060

number. According to Colonel Louwrens when he investigated this number

36 See Exhibit R page 22 (1 of1). 37 The call duration on page 22 of Exhibit R is eight seconds on the call data for the suspect number. The difference is made by the fact that the time is only reflected in hours and minutes without seconds, whereas the call data for Baaitjie’s number is reflected in seconds as well. The one on page 22 is therefore rounded to the nearest tenth.

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he established that it belonged to one Thabo who lives in Mafikeng who was

called by the deceased Baaitjie to be on standby regarding this tender that

he was to receive.

188. The next cell phone number that Colonel Louwrens testified about relates to

the suspect number which is 062 370 0114.38 It will be remembered that

earlier on Colonel Louwrens testified that this number was saved on the

deceased Baaitjie’s cell phone under the name “Werk by i man”. At 09:57 on

17 August 2016 there is an activity on this phone number wherein airtime

was loaded. The phone was at this time in Danielskuil. There are two

incoming calls thereafter. According to Colonel Louwrens, those calls came

from the same person being the service provider indicating that airtime is

recharged and that it has been loaded and what extra airtime is provided for

free. The fourth entry indicates an enquiry balance for the airtime that had

been loaded. At 09:58 there is a transaction with the deceased Baaitjie’s cell

number, which had lasted 181 seconds. This corresponds with the evidence

already referred to earlier on. It shall not be necessary to repeat the call data

transactions that had already been referred to between the suspect number

and the deceased Baaitjie’s cell phone. The communication between the two

numbers is not placed in dispute, and is as such common cause.

189. At 14:21 is an SMS sent to Baaitjie’s number. At 14:39 the suspect number

contacted the number of former accused number 6. At 14:43 the suspect

number called number 083 351 0924 and the call duration is 26 seconds.

This number belonged to Lekgotla who is the section 204 witness. At 17:27

the suspect number called the deceased Baaitjie’s number with a call

duration of 16 seconds and the suspect number was in Danielskuil. The next

activity was at 17:45 which is an outgoing call from the suspect number to

the number belonging to accused number 4, namely 083 856 2686 and the

call duration is 33 seconds. At 17:51 number 064 6005 668 belonging to

Lekgotla made a call to the suspect’s number and the call duration was 27

38 Exhibit R pages 16 to 36.

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seconds. At 17:53 the suspect number made contact with accused number

4’s number and the call duration was 18 seconds.39

190. At 18:03 one of Lekgotla Lekgotla’s numbers called the suspect number and

the duration is 10 seconds. At 18:14 the deceased’s number called the

suspect number and the duration was 45 seconds. With this activity the

suspect number was still in Danielskuil. However, the deceased’s number as

indicated already was in Postmasburg. At 18:19 there is an outgoing call

from the suspect number to one of the numbers of accused number 5 ending

with 4322 and the call duration is 21 seconds. Accused number 5’s number

was served by Danielskuil CEN tower. 40 The next activity, 18:38 the suspect

number contacted the number of the deceased and the duration is 14

seconds and the suspect number was still in Danielskuil. The deceased

Baaitjie was at that time as indicated already served by the Postmasburg

tower.

191. At 18:49 Lekgotla’s number tried to contact the suspect number but it was

call forward. Lekgotla’s number again called the suspect number and the

duration was 2 seconds. Thereafter, there was an incoming SMS that was

received by the suspect number. This activity was at 19:22. It is significant to

note that the last activity that was 18:49 was when the suspect number was

in Danielskuil. The next activity was at 19:22 with the suspect number. The

call duration is 48 seconds and the two numbers were now in Postmasburg.

The next activities are with the deceased’s number and I have already

referred thereto that both these numbers were served by the Postmasburg

tower.

192. On 18 August at 13:45 and 13:48 there were calls directed at the suspect

number from 076 009 5436 and 071 994 7582. Both these calls are reflected

as call forward, which means either the phone was not answered or was off.

According to Colonel Louwrens, one of the numbers belongs to one Mr

39 The evidence of Lekgotla and partly that of accused number1 suggest that the suspect number

and handset were not yet in the Jetta when these communications took place. 40 Exhibit R page 177.

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Norman Pullers. He made a call on the instruction of the member of the

Crime Intelligence Unit to see if he could obtain information on that number.

He highlighted that it is important to note further that the suspect cell number

was used on a handset with IMEI number: 358080018933250 which is

identified as a Nokia N70 handset. It is also important to note that the SIM

card that was put in this phone, Nokia N70, was being used for the very first

time on 17 August at 09:57:31 before noon, and the last date of use is 17

August 2016 at 07:28:13 past midday or after noon.41 The suspect SIM card

used on this Nokia N70 ends with the number 590 which connects it to the

other three SIM cards which were retrieved by Colonel Louwrens from the

cell phone shop of Mr Ali because of the sequence of the numbering being

588 and 587. He obtained these SIM cards from the cell phone on 22 August

at 14:15. The SIM card of the suspect number according to the RICA

documents, was registered at 17:14 on 20 July 2016. This means that on 17

August 2016, when it was used for the first time on the Nokia N70, it had

already been registered or rather “RICA’d”. The rest of the SIM cards

retrieved from the cell phone shop were accepted as exhibit ‘8’.

193. Colonel Louwrens testified about the usage profile of the Nokia N70.

According to the documents the Nokia N70 handset was also used with other

cell phone numbers, the first being 082 667 6133, that belonged to accused

number 3.42 This is the number that Colonel Louwrens already had in his cell

phone which reflected the number to belong to accused number 3 when he

punched it onto his cell phone. The next 074 955 1945 was also RICA’d in

the name of accused number 3 and had been used in the same Nokia N70.

There is also cell phone number 081 801 1667 which according to Colonel

Louwrens he was told by accused number 5 that it is the number that

belongs to accused number 3. The usage profile concludes that there is also

another Cell C number used with the handset.43

41 Compare this aspect with the evidence of Boitumelo, the presence of accused number 3 at the cell

phone shop and the evidence of Colonel Louwrens on the sale of the SIM card and the remaining string of other SIM cards.

42 Page 26 of Exhibit R. 43 The usage profile became a bone of contention by accused number 3 who contended that page 26 of

Exhibit R does not specifically state that the suspect number was used in the handset.

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194. Colonel Louwrens referred us to a further document in exhibit ‘R’ relating to

the usage profile of the cell phone number 082 667 6133 belonging to

accused number 3. This information relates to the mobile devices in which

this SIM card was used. He testified that this number was used on the Nokia

N70 from 23 October 2016 at 17:26:49 until 19 February 2016 at 21:00:05.

Again, the cell phone number was used on the Nokia N70 from 25 May 2016

at 07:11:14 until 17 August 2016 at 17:17:47. This suggests that the calls

that were made to the deceased Baaitjie as well as the SMS that was sent to

him, were made by use of the Nokia N70 on 17 August 2016. The GPRS

streaming calls that the number of accused number 3 ending with 6133 was

also used in the Nokia N70 on 26 May 2016 at 13:52:04 until 12 August 2016

at 11:59:44. The GPRS stream refers to inter alia, logging onto the internet

or WhatsApp or any other kind of access that is available on the cell phone

functions. It would normally be when one is requesting information like

account or data balances from the network provider.

195. Colonel Louwrens also referred to exhibit ‘M’ being a statement he obtained

from accused number 5 in which he inter alia indicated the numbers that he

knew to belong to accused number 3. In the statement he indicated that

accused number 3 also used numbers 081 801 1667 and 082 667 6133.

According to Colonel Louwrens, when he asked accused number 5 when last

did he contact accused number 3 that day, he searched for the information

on his cell phone and indicated that on 17 August 2016 at the following

times, 20:39, 19:48, 16:40, 16:12, 15:55 and 15:51. According to him,

accused number 5 indicated that he used his number 082 617 1424 at these

times to contact accused number 3 on his number 082 667 6133. He added

that with the calls at 20:39, 19:48 and 16:40 accused number 3 did answer.

Further, he phoned him on the 081 801 1667 number during the week and

accused number 3 did answer. Colonel Louwrens mentioned that he finished

taking the statement of accused number 5 at 01:08:50 and at that time he

also requested him to contact accused number 3 but he did not answer his

phone.

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196. Colonel Louwrens discussed the cell number 082 667 6133 belonging to

accused number 3. The relevant activities on the data statement referred to,

will be the activities starting on 16 August 2016. At 13:03:37, cell phone

number 082 617 1424 belonging to accused number 5 contacted the number

of accused number 3 and the call duration was 25 seconds. The tower that

accused number 3 was receiving at that time, was Danielskuil. The next

activity at 13:17:15 number 072 594 4900 belonging to the erstwhile accused

number 6, Mr Mgcera contacted the number of accused number 3 and the

call duration was 19 seconds and the tower serving accused number 3 was

Danielskuil. At 17:23:42 former accused number 6 contacted the number of

accused number 3 and the call duration is 57 seconds. The tower was still

Danielskuil for accused number 3. At 19:18:35 accused number 6 contacted

accused 3’s number and the call duration is 49 seconds. The tower servicing

accused number 3 was Danielskuil. At 19:52 accused number 3 contacted

former accused number 6 with a call duration of 34 seconds and the tower

was still Danielskuil.

197. The following day on 17 August 2016 in the morning at 08:28:35, accused

number 3 contacted former accused number 6 for 16 seconds using the

tower of Danielskuil. At 08:30:37 erstwhile accused number 6 contacted

accused number 3’s number for 28 seconds receiving the call under the

Danielskuil tower. For all these calls accused number 3 was using the Nokia

N70 handset44. At 09:53:19 erstwhile accused number 6’s number contacted

that of accused number 3 for 12 seconds, number 3 being serviced by

Danielskuil tower. At 10:07:18 erstwhile accused number 6’s number

contacted accused number 3 for 86 seconds being serviced by the

Danielskuil tower. At 10:35:34 erstwhile accused number 6’s number

contacted accused number 3 for 8 seconds. Accused number 3 was still

under the coverage of the Danielskuil tower. At 10:52:39, cell number

083 684 8901 belonging to Lekgotla, contacted the number of accused

44 This is the handset that accused number 3 says it was stolen from the Avanza motor vehicle.

78

number 3 and the call duration of 94 seconds and being serviced by the

Danielskuil tower.

198. At 13:53:08, accused number 3’s number contacted erstwhile accused

number 6’s number for 61 seconds using a tower in Danielskuil. At 13:55:46

the number 083 856 2686 belonging to accused number 4, Mr Mpondomisa,

contacted accused number 3’s number for 35 seconds and he was receiving

Danielskuil tower. At 13:58:32 accused number 3’s number contacted

erstwhile number 6’s number for 30 seconds, still using the Danielskuil tower.

At 15:50:54, accused number 3 contacted cell phone number 082 617 1424

belonging to accused number 5 for 5 seconds and number 3 was using the

Danielskuil tower. At 15:54:47 accused number 3’s number contacted

accused number 5 on his number 082 617 1424 for 2 seconds, and using the

tower of Danielskuil. At 16:17:41 accused number 3’s number contacted the

number of accused number 5, which ends with the numbers 4322 for 17

seconds and using the Danielskuil tower.

199. On the same day, 17 August 2016, at 16:39:34 accused number 5’s number

that ends with number 1424 contacted accused number 3’s number for 72

seconds and accused number 3’s number was serviced by the Danielskuil

tower. At 16:47:11 the number that ends with 5668 belonging to Lekgotla

contacted accused number 3’s number and the call duration was 32 seconds

with Danielskuil tower servicing accused number 3’s number. At 17:01:34

Lekgotla’s number ending with 5668 contacted accused number 3’s number

for 22 seconds, the latter being serviced by the Danielskuil tower.

200. Then on the following day, on 18 August 2016, at 08:28:21 accused number

3’s number contacted the number 074 769 5971 belonging to Lekgotla for

123 seconds, number 3’s number being serviced by the Danielskuil tower.45

The handset that was used by accused number 3’s number, was the handset

that was used by accused number 2 the previous day for his calls. For this to

be possible, it was indicated that the same number of accused number 3

45 Exhibit R page 45.

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ending with 6133 was used in the Nokia N70 up to 17 August 2016 at

17:17:47. The corresponding reference to this transaction will be found from

pages 101 of exhibit ‘R’ which is the user profile of the cell phone number of

accused number 2. At pages 104 to 105, it is indicated that his cell phone

number was being used on the Nokia 201 ASHA that is known to be

belonging to accused number 2.46 Thereafter, on the 18th, in the morning,

after these activities, the cell number of accused number 2, was then used

on his cell phone handset. The records reflect that on 18 August 2016, from

08:27:03 until 08:35:03, the Nokia 201 ASHA was used by accused number

3’s number. On the times already mentioned, the Nokia 201 ASHA belonging

to accused number 2, was used by accused number 3 for those activities

and thereafter it was given back to accused number 2 because his number

was then used on the Nokia 201 ASHA thereafter. The next activity used by

accused number 2 was at 08:37.39.47

201. Colonel Louwrens referred us to the activities of 14 August 2016 relating to

the usage profile of accused number 3’s number ending with 613348. It

showed that on 14 August 2016 from 16:39:22 the number of accused

number 3 received the Danielskuil tower until 22:55:23. On 14 August 2016,

at 07:19:46, former accused number 6, Mgcera’s number contacted accused

number 3’s number, for 20 seconds. Accused number 3’s number was in

Danielskuil. On 14 August 2016 at 07:28:24 an SMS was sent by accused

number 3’s number to Mgcera’s number. Accused number 3’s number was

receiving the SMS through the Danielskuil tower. Just to clarify, Colonel

Louwrens indicated that there is Owendale tower which is just outside

Danielskuil in the direction of Postmasburg and after Owendale, one gets to

Groenwater tower. From Groenwater one reaches Postmasburg.

202. On 14 August 2016, at 08:20, accused number 3’s number contacted the

number of accused number 5 that ends with 1424. The duration of the call

was two seconds with the Owendale tower servicing accused number 3’s cell

46 Record page 52 to 53 (8/11/2018). 47 Exhibit R page 104, second line from the bottom of the page. 48 Exhibit R page 44.

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phone number. On 15 August 2016, at 08:31:18, the number of accused

number 5 ending with 1424 contacted the number of accused number 3 for

59 seconds. At 08:32:51 accused number 3’s number contacted the number

of accused number 4, for 16 seconds. At 08:38:29 accused number 5’s

number that ends with 1424 contacted accused number 3’s number for 15

seconds. At 08:40:20 accused number 3 contacted accused number 4’s

number for 1 second. At 08:48:14 accused number 5’s number contacted

accused number 4’s number for 29 seconds. This number was contacted by

that of accused number 3. At 09:11:54 accused number 3’s number

contacted the number of accused number 5 that ends with 1424 for 11

seconds.

203. The next number that Colonel Louwrens testified about is cell phone number

064 600 5668 that belongs to Lekgotla, which is serviced by the Vodacom

network.49 Starting with the activities of 17 August 2016, the data reflects that

this number ending with 5668 belonging to Lekgotla, was serviced by the

tower Mothibistad CEN from 15:53:30 to 15:55:10. From 16:47:12 until

17:01:34 he used the tower at Kuruman. From 17:51:39 to 18:51:25 he was

in the area of Danielskuil. From 19:47:47 that number received the

Groenwater tower.

204. On the same 17 August, from 16:47:12 this number of Lekgotla contacted

the number of accused number 3 that ends with 6133 and the call duration is

32 seconds. Lekgotla was receiving the Kuruman tower at that stage. At

16:51:34, this number 5668 of Lekgotla contacted the number that ends with

2686 belonging to accused number 4 for 66 seconds and it indicates that

Lekgotla’s number at that stage was in Kuruman. At 17:01:34 Lekgotla’s

number that ends with 5668 contacted accused number 3’s number ending

with 6133 for 22 seconds and Lekgotla’s number indicates that he was

serviced by the Kuruman tower. At 17:51:39, Lekgotla’s number ending with

5668 contacted number 062 377 0114 which is the suspect number. And the

49 Exhibit R page 49 to 53.

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call duration is 26 seconds and the tower indicated where Lekgotla was at

that stage, as being in Danielskuil.

205. Then at 18:03:04 this number contacted the suspect number that ends with

114 with a call duration of eight seconds and Lekgotla’s number was at

Danielskuil. At 18:35:26 Lekgotla’s number contacted that of accused

number 4 for 10 seconds and the tower Lekgotla was receiving coverage

from is Danielskuil. At 18:47:29 Lekgotla’s number contacted the number of

accused number 4 for five seconds, still using the Danielskuil tower. At 18:49

Lekgotla’s number contacted the suspect’s number for one second still using

the Danielskuil tower. At 18:51:25 Lekgotla’s number contacted number 4’s

number for two seconds. Lekgotla’s number was in Danielskuil. At 19:47:47

Lekgotla’ number contacted the number of his brother, 083 521 4832. The

call duration is 19 seconds and Lekgotla was now receiving Groenwater

tower. Accused number 2’s number also received a call at the same time at

19:56:42 until 20:26:32 being serviced by the Groenwater tower as well. The

significance of this aspect, according to the State, is that accused number 2

all this time was in the area of Groenwater where Lekgotla was.

206. The next activity by Lekgotla’s number after he had called his brother, was at

19:51:12 when he called his brother but at that time he was now using the

coverage of Beeshoek tower. The call was forwarded to cell number 083 351

0924 and the duration was nine seconds. This number ending with 0924 also

belongs to Lekgotla. Beeshoek is in the direction of Kuruman from

Postmasburg. At 19:57:53 Lekgotla called a number ending with 227,

belonging to Mr Nkwe, the traditional healer/doctor. He thereafter called his

brother and made further two calls to Mr Nkwe.

207. The next number is 0833510924 belonging to Lekgotla. On 17 August 2016

at 12:43:41 accused number 3’s number ending with 6133 contacted the

number of Lekgotla ending in 8901 and the call was forwarded to his number

ending with 0924. The call lasted 9 seconds. At 14:43:46 the suspect number

contacted Lekgotla’s number ending with 8901 and the call was forwarded to

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the number ending with 0924, with a call duration of 26 seconds. On 19

August 2016 at 07:48:38, the number of accused number 4 contacted the

number ending with 8901 belonging to Lekgotla, but the call was forwarded

to the number 0924 the duration of the call lasting 62 seconds.50 With these

activities it is shown that Lekgotla diverted his number ending with 8901 to

his number ending with 0924.

208. The next cell phone number is number 074 769 5971 which also belonged to

Lekgotla. The records reveal that on 18 August 2016 at 08:28:21 the

number of accused number 3 ending with 6133 contacted this number of

Lekgotla and the call duration was 123 seconds, the tower indicating that

Lekgotla was at Mothibistad East CEN 5 tower. Then at 18:19 this number of

Lekgotla was contacted by accused number 4 with a call duration of 94

seconds and Lekgotla was serviced by the Mothibistad CEN 6 tower. Also on

18 August 2016 at 16:45:07 Lekgotla’s number contacted the number of

accused number 1 that ends with 4378 and it indicates that Lekgotla was

using the coverage of the Seodin tower. This tower is also in the Kuruman

area. The call duration is two seconds.51

56. The next cell number is 083 856 2686 which according to Lekgotla belongs to

accused number 4.52 It is however not RICA’d in the name of accused

number 4. According to Colonel Louwrens the cell phone data shows that this

number had several contacts with the co-accuseds for the period 5 August

2016 to 15 August 2016. In short, Colonel Louwrens testified that this number

had no contact with the number of accused number 5 ending with 1424. But

with the number of accused number 3 ending with 6133, had 12 contacts and

with the number ending with 9434 belonging to accused number 3, only one

contact for that period. With accused number 3’s number ending with 667

there was no contact. With the number of accused number 2, which ends

with 10085, there were five contacts and with the number that ends with 4575

50 This call is disputed by accused number 4. 51 Exhibit R page 64; Record pages 66 to 67 (8/11/2018). 52 Exhibit R page 65 to 85.

83

of accused number 2, there was no contact. Then on 17 August 2016 at

12:00:17 the number 8901 of Lekgotla contacted this number of accused

number 4 with a call duration of 273 seconds. At 12:06:32 Lekgotla’s number

ending with 8901 contacted accused number 4’s number for 50 seconds. At

12:36:17 Lekgotla’s number contacted accused number 4’s number for 157

seconds. At 12:49:52 Lekgotla’s number again contacted accused number 4’s

number for 67 seconds. At 13:30:56 Lekgotla’s number contacted accused

number 4’s number for 113 seconds. At 13:43:11 Lekgotla’s number

contacted accused number 4’s number for 44 seconds.

209. On 17 August 2016 at 13:55:46 the number of accused number 4 contacted

the number of accused number 3 that ends with 6133 and the call duration

was 25 seconds. At 14:23:23 Lekgotla’s number ending with 8901 contacted

the number of accused number 4 for 23 seconds. At 15:28:29 Lekgotla’s

number contacted 8901, the number of accused number 4 for 39 seconds. At

16:51:34, Lekgotla’s number contacted number 4’s number that ends with

5668 for 67 seconds. At 17:45:52 the suspect number that ends with 0114

contacted the number of accused number 4 for 33 seconds.

210. On 17 August 2016 at 17:53:08 the suspect number ending with 0114

contacted the number of accused number 4 for 18 seconds. At 18:35:26 the

number 5668 of Lekgotla contacted the number of accused number 4 for 12

seconds. At 18:54:16 the number ending with 10085 of accused number 2

contacted accused number 4’s number for five seconds. Still on 17 August

2016, now at 18:47:29, the number ending with 5668 of Lekgotla contacted

accused number 4’s number for 46 seconds.53 At 18:49:56 the number of

accused number 2 ending with 10085 contacted accused number 4’s number

for 14 seconds. At 18:51:25 Lekgotla’s number ending with 5668 contacted

the number of accused number 4, however, the call is indicated as call

forward.

53 The State argues later that these calls from accused number 2 and Lekgotla at more or less the

same time confirms that they were waiting for accused number 4 who was delaying them to travel to Postmasburg.

84

211. According to the statement, after the activity of 17 August 2016, at the time

18:51:25 accused number 4’s number had no activity or the phone was not

answered up until 21:15:18 when it contacted the number of accused

number 1. It also indicates a call forward and then on 18 August 2016, at

11:18:57, the number of accused number 5 that ends with 4322 contacted

accused number 4’s number for 32 seconds. At 11:27:39 the number ending

with 4322 of accused number 5 contacted accused number 4’s number for

38 seconds.

212. On 18 August 2016 at 18:19:29 the number 083 856 2686 belonging to

accused number 4 made contact with the number 074 769 5971 which is

Lekgotla’s number. The duration of the call was 95 seconds. At 18:39:45 the

number of accused number 5 that ends with 4322 contacted the number of

accused number 4 and the call duration was 31 seconds. At 18:41:21 the

number for accused number 4 contacted the number that ends with 10085

belonging to accused number 2 and the call duration was 18 seconds. At

18:52:59 the number of accused number 5 that ends with 4322 contacted the

number of accused number 4 and the call duration was 355 seconds.

213. On 18 August 2016 at 19:06:08 the number of accused number 2 contacted

the number of accused number 4 which indicated call forward. The following

day on 19 August 2016, at 02:43:36, accused number 2’s number contacted

the number of accused number 4 and the call duration was 69 seconds. It is

to be noted that this call was made the morning when Colonel Louwrens took

a statement of accused number 5 starting from 01:50 at the police station

and later that morning released him. The suspicion is that this call may

have been triggered by Colonel Louwrens’ interrogation of accused number

5 meaning that accused number 2 and number 4 had been made aware of

the interrogation that early morning.

214. On 19 August 2016 at 02:50:46 the number 4322 of accused number 5

contacted the number of accused number 4 and the call duration was 916

seconds. At 04:08:05 the number of accused number 5, 4322, contacted the

85

number of accused number 4 and the call duration was 166 seconds. A few

minutes later, 04:14:01 the number of accused number 5 contacted accused

number 4’s number for 46 seconds. Soon thereafter at 04:15:25, accused

number 5’s number contacted accused number 4’s number for 62 seconds.

At 04:17:24 accused number 5’s number contacted accused number 4’s

number for 52 seconds. At 07:06:58 accused number 5’s number contacted

accused number 4’s number again and the call duration was 172 seconds. At

07:47:44 accused number 4’s number contacted the number that ends with

5971 belonging to Lekgotla and the call duration is 3 seconds. At 08:03:49

accused number 5’s number contacted accused number 4’s number and the

call duration was 44 seconds. At 08:35:56 accused number 4’s number

contacted the number of accused number 2 with a call duration of 24

seconds. At 08:36:52 accused number 4’s number contacted accused

number 2’s number and the call duration was 70 seconds. At 09:04:41

accused number 4’s number contacted accused number 2’s number with a

call duration of 22 seconds. At 09:39:42 accused number 4’s number

contacted accused number 2’s number for the call duration of 35 seconds.

The time was corrected by Colonel Louwrens that it should have been at

06:45 pm meaning that it was a call that was made late in the afternoon.

215. The next cell phone number is that of accused number 2, being 082 761

0085. The period to be covered by the cell phone data are the activities from

15 August 2016 from 07:42:47 up to 22 August 2016 at 20:09:57. In addition,

that number was used on the Nokia 201 ASHA handset. The evidence

indicates that that handset on 17 August 2016 was in Postmasburg. The

following day, the same handset was used in the morning of 18 August 2016

with few activities on the number ending with 6133 belonging to accused

number 3. This means that the SIM card of accused number 3 was inserted

and used in the Nokia 201 ASHA belonging to accused number 2 on 18

August 2016 and the same Nokia 201 ASHA was in the vicinity of

Postmasburg on 17 August 2016. For Colonel Louwrens to say that this

number belongs to accused number 2 (082 761 0085) is because on 25 April

2016, Colonel Louwrens met accused number 2 at the detective branch

86

offices in Danielskuil. He made an entry in the diary of the docket that he was

handling at that time. Amongst others, accused number 2 gave him this

number as belonging to him. The RICA records and data indicate that this

cell phone number was used from 6 February 2016 at 19:22:26 until 23

September 2016 at 07:00:19 and it had 2234 successful activities.

216. On 15 August 2016 at 17:25:14 the number of accused number 4 made

contact with the number of accused number 2 for seven seconds. On 16

August 2016 at 18:46:14 the number of accused number 2 sent an SMS to

the number belonging to his girlfriend, Ms Pholo. On 17 August 2016 at

17:55:59 the number of accused number 2’s girlfriend contacted the number

of accused number 2. On 17 August 2016, at 18:45:16 the number of

accused number 2 contacted the number of accused number 4 and the call

duration was five seconds. At that time accused number 2 was covered by

the Danielskuil tower. On 17 August 2016 at 18:49:46 the number of accused

number 2 contacted the number of accused number 4 for 13 seconds and

accused number 2’s number indicates that he was under the coverage of

Danielskuil. At 19:30:13 there is an SMS that accused number 2 received

and the tower indicates that he was in Postmasburg. Page 22 of Exhibit “R”

is the call data of the suspect number. Entries 19:26 and 19:28 indicate that

the suspect number was also in Postmasburg at the time.

217. At 19:56:42 the number belonging to accused number 2 contacted number

071 850 9434 which belonged to accused number 3 and the call duration is

three seconds. At that time the coverage tower for accused number 2’s

number was Groenwater. At 19:58:00 the number belonging to accused

number 2 contacted the number of accused number 5 that ends with 4322

with a call duration of 10 seconds and coverage tower for accused number

2’s number was Groenwater. The corresponding entry of this activity found in

accused number 5’s statement at page 177 of Exhibit “R” indicates that at

that time he was covered by the Danielskuil tower. At 20:00:08 the number of

accused number 2 contacted the number 4322 belonging to accused number

5 and the call duration is five seconds and number 2 was still under the

87

Groenwater tower. At 19:47:47 the number of Lekgotla at that time was also

in Groenwater if one refers to the cell phone data of his cell phone54.

218. At 20:18:20 there is an outgoing call from accused number 5’s cell phone to

the number of accused number 2 with the coverage of accused number 5’s

number being Owendale tower. As indicated earlier, Owendale is a place

between Danielskuil and Groenwater. At 20:18:57 the number of accused

number 5 again called the number belonging to accused number 2 and the

number of accused number 5 received the Papkuil tower coverage. At

20:18:57 the number of accused number 5 contacted the number of accused

number 2. At that stage accused number 5’s number received the Papkuil

tower.55 The next activity then is 20:21:45 when accused number 5’s number

also contacted the number of accused number 2 and the tower indication is

Owendale. At 20:26:32 the number of accused number 5 again contacted the

number of accused number 2 and then it is indicated that the number of

accused number 5 received the Groenwater tower. The next activity is at

20:26:32 which indicates that accused 5’s number was still receiving the

Groenwater tower. At 21:14:19 the next activity on accused number 2’s

number shows that he was now in the Danielskuil coverage. The activity on

accused number 5’s number shows that at 21:25:51 he was also covered by

the Danielskuil tower.

219. At 21:37:03 the number ending with 4322 belonging to accused number 5

contacted the number belonging to accused number 2 for a call duration of

33 seconds. The corresponding entry shows that accused number 2 as well

as accused number 5’s numbers were both under the Danielskuil coverage

area. At 21:47:32, the number of accused number 2 contacted his girlfriend’s

number and the call duration is 70 seconds.

54 Lekgotla made a call to his brother at the time from Groenwater. It is also to be noted that at 20:26:32

there is a contact between accused number 2’s number and that of accused number 5 with a call duration of 112 seconds. At that time, it indicates that accused number 5 was covered by the Groenwater tower and no longer Danielskuil. This aspect will be made clear when accused number 5’s number ending with 4322 is discussed.

55 Exhibit R page 177.

88

220. On 18 August 2016 at 15:38:55 the number belonging to erstwhile accused

number 6 contacted the number belonging to accused number 2 for the call

duration of 37 seconds. At 16:00:55 erstwhile accused number 6’s number

again contacted number 2’s number for 39 seconds. At 18:41:21 accused

number 4’s number contacted accused number 2’s number, call duration 18

seconds. At 09:06:08 number 2’s number contacted number 4’s number for

duration of 1 second.

221. On 19 August 2016 in the early hours of the morning at 02:37:24 the number

of accused number 2 contacted number 071 850 9434, being the number

belonging to accused number 3. At 02:43:36 accused number 2’s number

contacted the number of accused number 4 for call duration of 68 seconds.

At 06:53:23 the number belonging to erstwhile accused number 6 contacted

the number of accused number 2 for 93 seconds. Colonel Louwrens drew

our attention to the fact that these calls were made after he had met accused

number 5 in the early hours of the morning at his house and took him to the

police station to obtain his statement.

222. On 19 August 2016, at 08:35:56 the number belonging to accused number 4

contacted the number of accused number 2 for 23 seconds. At 08:36:52

number 4’s number contacted accused number 2’s number for 69 seconds.

At 09:44:41 the number of accused number 4 made contact with the number

of accused number 2 for 21 seconds. At 09:39:42 number 4’s number

contacted accused number 2’s number for 30 seconds. At 14:49:42 number

4322, belonging to accused number 5 contacted the number belonging to

accused number 2 for 20 seconds. At 18:23:57 the number belonging to

accused number 2 contacted the number belonging to accused number 5 for

one second. Immediately thereafter at 18:24:14 the number of accused

number 2 contacted the number of accused number 5 and the call duration

was 107 seconds.

89

223. Colonel Louwrens testified about the call data relating to number 072 594

4900 belonging to erstwhile accused number 6, Paulus Mgcera.56 He

showed that there were several cell phone contacts between Mgcera and the

other accused excluding accused number 1 for the period 14 August to 16

August 2016. There were also contacts on 17 August 2016. Of significance

he referred to the contact made at 09:50 and 09:53 between Mgcera and

accused number 3. He showed that at 09:50:14 accused number 3’s number

ending with 6133 contacted the number of Mr Mgcera. It is significant to note

that this call made by this number ending with 6133 at this time was used in

the Nokia N70. A few minutes later, at 09:58 the suspect number ending with

114 was placed in the Nokia N70 and contacted the number belonging to the

deceased Baaitjie for 181 seconds. By this it is meant that the Nokia N70

used the number belonging to accused number 3 ending with 6133 to

contact Mr Mgcera at 09:50:14 and soon thereafter the same Nokia N70

using the suspect number from Cell C, contacted Mr Baaitjie for 181

seconds57.

224. On 17 August 2016 at 14:39:08 the suspect Cell C number 062 370 0114

contacted Mgcera’s number and the call duration was 17 seconds. On 18

August 2016 Mgcera made contact with accused number 5’s number that

ends with 1424 at the following times: 07:32:08, 08:01:32, 12:21:17,

15:42:07, 15:59:17 and 16:12:16. On the same day, the number of Mgcera

contacted the number belonging to accused number 2 on two occasions

being 15:35:55 and 16:00:55. On 19 August 2016 the number of Mgcera

contacted the number of accused number 5 that ends with 4322 at the

following times: 07:21:09, 07:25:06, 07:26:17, 07:53:11, 07:58:37, 09:07:29,

11:29:50, 11:58:43, 12:20:31, 13:09:02, 13:43:50, 14:47:29. On 19 August

2016 at 06:53:23 the number of Mgcera contacted the number belonging to

accused number 2 for 93 seconds.

56 Exhibit R page 114 to 136. 57 According to accused number 3 the Nokia N70 was not in his possession as it was stolen from the

Avanza.

90

225. The next number covered by Colonel Louwrens is 060 353 4378 belonging to

accused number 158. Data shows that the number was on 17 August 2016

in Kuruman and Mothibistad. However, from 18:23:16 up to 18:43:58 it was

in Danielskuil coverage area. At 18:54:38 this number received the

Owendale Eskom tower. This is in the area of Danielskuil. At 21:23:31 this

number of accused number 1 received the Hoërskool Kalahari tower which is

in Kuruman. On 17 August 2016 the number had contact with the number of

Lekgotla that ends with 8901 on the following occasions: 12:05:14, 12:39:41,

15:18:59, and 15:19:50. On 18 August 2016 the number of accused number

1 had contact with the number of Lekgotla that ends with 8901 at the

following times: 08:34:00, 08:43:42, 08:45:40, 08:49:25, 09:02:22, 09:10:55

and further 16:34:29, 16:35:14, 16:48:59, 16:49:57, 18:05:19, 18:05:28,

18:05:37, 18:08:48, 18:09:29.

226. Colonel Louwrens dealt with the cell phone number 082 617 1424 belonging

to accused number 5.59 The Network provider is Vodacom and the RICA

registration is in accused number 5’s names. The activities of 14 August

2016 from 08:20:56 until 21:18:29. On this day at 17:27:27 the number

contacted the number of Mgcera for a call duration of 16 seconds. At

18:14:34 Mgcera contacted this number for 20 seconds. At 20:00:14 this

number contacted Mgcera for 192 seconds. On 16 August 2016, at 13:02:09

the number 1424 contacted Mgcera for 32 seconds. At 13:03:37 it had

contact with accused number 3’s number ending with 6133 for 25 seconds.

At 18:18:34 Mgcera contacted this number for 33 seconds. At 20:09:06.

accused number 5’s number contacted Mgcera for 624 seconds.

227. On 17 August 2016 accused number 5’s number ending with 1424 contacted

Mgcera’s number for 99 seconds at 09:51:13. At 11:20:01 Mgcera’s number

contacted number 5 for 10 seconds. At 11:34:05 Mgcera contacted the

number for 16 seconds. At 11:43:22 the number contacted that of Mgcera

for 33 seconds. At 15:50:54 and 15:54:47 accused number 3’s number

58 Exhibit R page 137 to 146. 59 Exhibit R page 147 onward.

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contacted that of 1424 but the transaction is recorded as call forward. At

16:39:34 the number 1424 contacted accused number 3’s for 72 seconds.

At 18:02:27 Mgcera’s number contacted 1424 for four seconds. At 19:10:30

Mgcera’s number contacted the number 1424 for 63 seconds. At 19:24:01

Mgcera contacted 1424 for 186 seconds. Thereafter, from 19:24:01 up until

21:13:54 the number 1424 had no activities.

228. On 18 August 2016 at 07:32:08 Mgcera’s number contacted the number for

82 seconds. At 08:01:53 the number 1424 contacted Mgcera’s number for 55

seconds. At 08:50:20 the number 1424 contacted Mgcera’s number for eight

seconds. On 19 August 2016 at 01:06:09 the number ending with 1424

contacted the number of accused number 3’s 081 801 1667 for a call

duration of 2 seconds. According to Colonel Louwrens this call was made at

his request when he interviewed number 5 at his house when he was looking

of accused number 3. Colonel Louwrens pointed out further that the number

081 801 1667 belonging to accused number 3 was used in the Nokia N70.

This means that three of accused number 3’s cell phone numbers were used

in the Nokia N70. The call duration is reflected as 22 seconds. However, the

records from Vodacom reflect that the number was not in use or was inactive

at the time the call was made to it. It therefore does not necessarily mean

that there was a conversation for 22 seconds.

229. Colonel Louwrens handed up a document marked exhibit ‘R1’ which is a

profile usage of cell phone number 081 801 1667 belonging to accused

number 3. What can be deduced from exhibit ‘R1’ is that this number

081 801 1667 was not in use for the periods 26 to 27 July 2016 and 16 to 19

August 2016.

230. The next cell phone number testified to by Colonel Louwrens is 072 449

4322 belonging to accused number 5.60 The number was not active on 14

August 2016 from 09:36:04 up until 12:49:02. On the same date from

60 Exhibit R page 159

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13:09:11 until 13:53:42 received the Owendale tower. From 17:03:59 to

21:38:21 it received the Danielskuil tower.

231. The cell phone data indicates that on 16 August 2016 at 08:17:40 the

number of erstwhile accused number 6 Mgcera, contacted this number for

120 seconds. On 17 August 2016 at 18:19:02 the suspect’s number 062 370

0114 which contacted the deceased Baaitjie, contacted the number of

accused number 5 for 21 seconds. At 19:58 the number of accused number

2 (0827610085) contacted this number of accused number 5 and it indicates

that the number of accused number 5 with this activity was in Danielskuil.

The rest of the calls between these numbers of accused number 2 and

accused number 5 have already been referred to by Colonel Louwrens when

he dealt with the cell phone number of accused number 2. Of importance, he

demonstrated that there were several contacts between the two numbers

when accused number 2 was at Groenwater. Later accused number 5’s

number received the Groenwater tower and later the two numbers were

under the Danielskuil tower coverage.

232. On 17 August 2016 at 21:56:22 the number that ends with 4322 of accused

number 5 had contact with number 081 836 3576 belonging to accused

number 1 and the call duration was 69 seconds61.

233. On 18 August 2016 at 11:18:57 and 11:27:39, this number of accused

number 5 contacted the number of accused number 4 and the duration was

31 and 37 seconds respectively. On 18 August 2016 at 12:21:17 the number

of Mgcera contacted the number of accused number 5 for 71 seconds. The

same day, at 15:42:07 the number of Mgcera contacted the number of

accused number 5 for 29 seconds. At 15:59:17 Mgcera’s number was

contacted by the number of accused number 5 for 13 seconds. At 16:12:16

Mgcera’s number contacted accused number 5’s number for 28 seconds. At

18:39:35 accused number 5’s number contacted accused number 4’s

61 Note the explanation of this call by both accused number I and 5.

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number for 30 seconds. At 18:52:59 accused number 5’s number contacted

accused number 4’s number for 354 seconds.

234. On 19 August 2016 at 18:23:57 and at 18:24:14 the number of accused

number 2 contacted the number that ends with 4322 of accused number 5

for 107 seconds. Reference was made to an FNB bank statement belonging

to accused number 5. The bank statement had a transaction at number 9 on

the page 193 of Exhibit “R” where an amount of R1 000.00 was paid on cell

phone number 074 769 5971 belonging to Lekgotla. The transaction took

place on 23 August 2016.

235. Colonel Louwrens dealt with the cell phone number belonging to Mr Nkwe

who is a traditional healer/doctor. The number is 079 245 8227.62 The

number’s statement indicates that on 17 August 2016 at 19:57:53 it received

a call from the number of Lekgotla, ending with 5668, and the duration of the

call was 51 seconds. Mr Nkwe’s number was at that time receiving the

Seodin tower which is in Kuruman. At the time of this activity Lekgotla’s

number was covered by the Groenwater tower. At 20:03:32 the number of Mr

Nkwe contacted the number of Lekgotla and the duration is 77 seconds. Mr

Nkwe’s number was still in Kuruman at that time. The number of Mr Nkwe

once again contacted that of Lekgotla on 17 August 2016 at 20:06:14 for 74

seconds. Then the number 082 684 8901 belonging to Lekgotla contacted

the number of Mr Nkwe at 21:24:32 and 22:40:27 with call durations of six

and 65 seconds respectively.

236. The next number is 078 200 6500 belonging to accused number 1. The

statement indicates that there was no activity on this number on 17 August

2016.

237. The next number is 078 603 0122 belonging to Mr Nkwe. The usage profile

for this number reveals that this number was used on the Nokia N70 cell

62 Exhibit R page 195.

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phone that we know is the one that was used to send a message to the

deceased Baaitjie63.

238. The next cell phone number is 081 836 3576 which according to Lekgotla

belongs to accused number 1. The data statement indicates that on 17

August 2016 this number was contacted about four times by the number of

Lekgotla ending with 8901 at the times 15:20:11, 15:22:47, 16:09:16 and

16:31:00. It also indicates that on 17 August 2016 at 21:15:18 the number

belonging to accused number 1 contacted this number of accused number 4

and the call duration is 4 seconds64. This call went to call forward and is to be

found on page 219 of Exhibit “R”. The corresponding entry on this activity is

on page 83 being the call data for accused number 4. The call received at

09:15:18 pm went to call forward. Colonel Louwrens testified already that on

that day the phone of accused number 4 was switched off from 06:51:25 pm

when Lekgotla attempted to call him. Colonel Louwrens mentioned that

according to Lekgotla, this call that accused number 1 made to accused

number 4 was at the request of accused number 2 when they were to go to

Postmasburg from Danielskuil and accused number 4 was delaying to come.

239. On 17 August 2016 at 21:56:22 the number of accused number 5 that ends

with 4322 contacted the number of accused number 1 and the call duration is

69 seconds65. The tower used by accused number 5’s number on the

corresponding entry on his cell phone data is reflected as Danielskuil. This

concludes the evidence in chief of Colonel Louwrens on the cell phone data

aspects and what followed is his cross-examination that will be dealt with

separately at a later stage as part of analysis.

240. Tiro Mcant ire Lekgot la was cal led to test i fy. Mr Cloete on

63 Compare with the evidence of Lekgotla that the Nokia N70 was placed in the Jetta in Danielskuil

which accused number 1 claims he did not see it happen. 64 Note the respective versions of accused no’s 1 and 4 on this call. 65 See the explanation given by accused number 4 and 5 about this call which is intended to eliminate any contact between accused number 1 and number 5 in particular. The explanation is that accused number 4 met accused number 5 and borrowed his phone to call this number from which there was a missed call and the person who picked up said he is Tiro Lekgotla and accused number 4 immediately dropped the call upon hearing that.

95

behalf of the state informed the court that the witness wi l l be

required by the prosecut ion to answer some quest ions which

may incr iminate him with regard to the same offences as set

out in the indictment and requests that the witness be infor med

and warned about the provis ions of sect ion 204 of Act. He was

duly warned, and he conf i rmed that he understood. He

undertook to answer a l l quest ions including those incr iminat ing

him to the best of h is abi l i ty, f rankly, t ruthfu l ly, honest ly and

fu l ly; that in the event that he fa i ls to do so he wi l l not be

indemnif ied f rom prosecut ion on any charge re lat ing to th is

case. Should he answer a l l quest ions f rankly, t ruthfu l ly and

honest ly to h is knowledge and abi l i ty he may be indemnif ied

f rom prosecut ion on those charges.

241. He is 32 years o ld, passed matr ic in 2005. He also studied for

Cert i f icate in Publ ic Management Resource in 2007 and

Diploma in Publ ic Management. He however, d id not graduate

because he did not do his pract ical t ra in ing. He ult imately

completed the studies in 2010. During August 2016 he was

employed by Mining Support and Development establ ishment

as a supervisor and later f inancia l off icer. During August 2016

he was not report ing to h is workplace as he had a labour

d ispute with the employer. He was however, st i l l being paid h is

salary. The dispute re lated to a process to reduce his salary by

the employer due to the poor f inancia l s i tuat ion the company

experienced at the t ime.

242. He knows accused number 1 f rom Mothib istad t as “Bongz ” . He

was wel l known in the community for h is beaut i fu l motor

vehic le and good qual i ty music system he insta l led in i t . He

met accused number 2 for the f i rst t ime on 17 August 2016 and

later on 3 September 2016. He also knows accused 3. He also

met h im for the f i rst t ime on 17 August 2016 in Danielskui l . He

96

met accused number 4 in 2012. He knew him as Charl ie. He is

one of the employees that he found when he jo ined the

company he was working for. They could have met about twice

socia l ly. They most ly met a t work as col leagues. Accused

number 4 later left the company and jo ined John Riggs. They

both kept their respect ive cel l phone numbers. He only met

accused number 5 on 3 September 2016 in Danielskui l . Before

September the 3 r d he merely saw him in the area of the mines.

243. Just before the 2016 elect ions, Lekgot la remembers phoning

accused number 4 and asked him about h is whereabouts, as

he had not seen him for some t ime. He asked him i f he was

st i l l employed. He repl ied that he was st i l l employed but at that

moment he was busy putt ing up the posters. He asked him

posters for what and he said the ones for h is brother who had

been nominated as ANC candidate in the upcoming municipal

e lect ions. He said the name of h is brother is Zet.

244. Lekgot la test i f ied that on 16 August 2016 he received a phone

cal l f rom a strange number. He answered the phone an d the

cal ler said that he is ta lk ing to Charl ie. He also recognised him

by the voice that i t was indeed Charl ie, accused number 4. He

ment ioned that he wanted him to assist with t ransport . He

asked him transport for what. He said they have a deal in

Postmasburg. He asked him when, he said the next day which

was the 17 t h . He asked him why he does not t ry to f ind

t ransport where he was in Danielskui l because i t would be

nearer. He said he t r ied to get t ransport local ly but d id not

succeed. He asked him what the deal was about. He just

laughed and remarked that he is asking too much. What

crossed his mind at that moment was that they wanted to do

something against the law because why would someone want

to use t ransport f rom Kuruman which is 80km from Danielskui l ,

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for h im to be t ransported f rom Danielskui l to Postmasburg and

from Postmasburg back to Danielskui l .

245. At the t ime Lekgot la owned a VW Polo TSI. He indicated to

accused number 4 that he did not have his motor vehic le at the

t ime as he had borrowed i t to h is f r iend who had to t ransport

people to work that week. They had exchanged motor vehic les.

Lekgot la was using his van and he had Lekgot la ’s VW Polo.

That van also belonged to h is father. Accused number 4

requested him to make a plan to get h im transport . Lekgot la

promised to t ry.

246. Later that day, 16 August Lekgot la met accused number 1. He

to ld h im of people that needed transport f rom Danielskui l to

Postmasburg and back and asked him how much he would

charge them i f he was to assist . Accused number 1 repl ied that

he does not know. He asked him why those people do not want

t ransport in Danielskui l where they were which wi l l be closer to

their dest inat ion. He asked him for what purpose was the

t ransport required. Lekgot la to ld h im that they said to him they

have a deal in Postmasburg. The ir ro le would be to p ick them

up in Danielskui l and off load them somewhere in Postmasburg

and wait for them. They wi l l go and at tend to their deal,

af terwards return to the car and they wi l l t ransport them back

to Danielskui l . That is what he was to ld by accused number 4.

Accused number 1 responded that Lekgot la should use his

d iscret ion as to how much should they be charged. They

parted company on that note .

247. The next conversat ion Lekgot la had with accused number 4 he

promised to pay R20 000.00 for the t ransport . He does not

remember whether he cal led or received a cal l f rom him. He

also does not recal l whether i t was on the 16 t h or the fo l lowing

98

day. Lekgot la was surpr ised by the amount offered. He asked

him why so much money. The answer was that they have a

deal in Postmasburg with a DA person. He said Zet, was

supposed to be a counci l lor but i t seems as i f i t is not going to

happen because DA had received more seats in the

municipal i ty. Whi lst the conversat ion was on accused number 4

to ld h im to hold on and to ta lk to h is “B ro ” . Lekgot la asked him

who his “B ro” is . He repl ied that his “Bro” is Zet. Zet took the

phone and said he was supposed to be a counci l lor but the DA

has received more seats than the ANC and the DA person wi l l

the fo l lowing day on 17 August, be sworn in off ic ial ly as a

counci l lor, meaning that f rom there on there wi l l be no jobs

avai lable. Lekgot la repl ied that i t is d i ff icul t . Zet then said no

“you are not doing anything. You are just going to t ransport us

to Postmasburg, me and Charl ie we wi l l do th e work. Af ter we

completed the work, we wi l l come back to the motor vehic le

and you wi l l t ransport us back to Danielskui l ” .

248. Lekgot la test i f ied that what came to h is mind was that the

th ing they were going to do was i l legal, a person might be

ki l led or assaulted. Because their part ic ipat ion would be just to

t ransport them and they are not going to see what is actual ly

going to happen on the other s ide and the high amount of

money to be paid to them, he agreed.

249. Lekgot la met accused number 1 and he reported to h im

everyth ing that he discussed with them. Accused number 1 was

also surpr ised about the exorbi tant amount of money offered.

Lekgot la d id not te l l h im what came to h is mind namely, that a

person might be assaulted or k i l led. The two decided to assist

them with t ransport . Accused number 1 offered to use the Jetta

motor vehic le belonging to h is wife. There was no agreement

as to how the R20 00.00 would be shared between the two of

99

them.

250. Lekgot la test i f ied that the fo l lowing day he had a te lephonic

communicat ion with accused 4. They agreed that they wi l l

come to Danielskui l and fetch them. He later received a phone

cal l ref lect ing the numbers he did not know and were also not

on his phone contacts. He answered, the person said, “ i t is

Zet”. He said Lekgo t la should henceforth use the numbers

appearing on his phone screen to communicate with them. He

recognised the voice as being of the Zet he spoke to the

previous day. Later Lekgot la cal led the number provided and

asked i f they were ready and they could come. Zet answered

and said they should wait a b i t they were st i l l busy. I t was

during the day, and Lekgot la was with accused number 1 at the

t ime.

251. Lekgot la later cal led accused number 4 and to ld h im that he

had just cal led the new number provided to h im and spoke to

Zet; that he asked him whether they could come, and he said

they were st i l l busy. Accused number 4 conf i rmed that they

were indeed busy. Lekgot la made a cal l again to that new

number. He spoke to Zet and asked him i f they want t ransport ,

i f so, they must come or i f not , they must abandon everyth ing.

Zet said they should come to Danielskui l , and they should

phone on arr ival . Lekgot la left the single cab van that he was

dr iv ing at the wife of accused number 1’s p lace. They got into

the Jetta and drove to Leach Garage; they f i l l ed up diesel to

the value of R650.00 paid for by Lekgot la. I t was already af ter

4pm and they left Kuruman for Danielskui l . A photo album

admitted as Exh ibi t TT was used during the course of the

evidence of Lekgot la to conf i rm the places he pointed out. He

made these point ing out on 9 February 2017.

100

252. Lekgot la had three cel l phones with h im. He took the one that

had air t ime and left the other two in the van, one of which was

connected to a charger. On the way he never received nor

made a cal l . They arr ived in Danielskui l and stopped at the

Caltex garage. Lekgot la entered the shop and bought a soft

beverage. Af terwards he phoned the number provided and Zet

answered. Lekgot la to ld h im that they had arr ived in

Danielskui l , they are at the Garage. Zet said they should come

to the township area Slo ja, they wi l l see a tuck shop as they

approach accused number 4’s p lace. They must not come to

the house but should park at the tuck shop. Lekgot la d id not

remember wel l where the tuck shop was but the explanat ion

that i ts c loser to accused number 4’s p lace would make i t easy

for h im to ident i fy i t . He knew more or less where accused

number 4 stayed. He was last at h is p lace somet ime in 2015.

That was the only t ime. They drove to Slo ja.

253. They stopped at the tuck shop as instructed. The witness

marked the house of accused number 4 on photo 7 of Exhibit

“TT” . Lekgot la phoned the number provided and to ld Zet that

they had arr ived. Zet said they would be coming to the m soon.

He saw a white Wildtrak double cab van and a Toyota Avanza

on accused number 4 ’s premises. Accused number 4 went to

the Wildtrak and cleaned i ts carpet and thereafter returned to

the house. Lekgotla ident i f ied the Wildtrak on photos 35 and

36 of Exhibi t “D” and the Avanza o n photos 11 and 12 of

Exhibi t : D”.

254. Lekgot la saw accused number 3 accompanied by accused

number 2 leaving the house and got into the Avanza. Accused

number 3 drove towards where the Jet ta was parked. They

greeted them from inside the Avanza. They got out of the

Avanza and came to the Jet ta. They attempted to open the

101

doors and accused number 1 to ld them that the r ight rear door

was not funct ioning, and they should use the other door.

Accused number 2 entered f i rst fo l lowed by accused number 3.

The lat ter introduced himself as Zet. Lekgot la recognised him

by his voice that he has been communicat ing with that i t is

indeed Zet. He pointed at accused number 2 and said he is h is

f r iend, Frank. I t was the f i rst t ime that Lekgot la saw and met

the two. The only t ime he had knowledge of Zet was his photo

on the elect ion posters as an ANC candidate when he was in a

taxi t ravel l ing f rom Kuruman via L ime Acres. Lekgot la

conf i rmed the poster he is referr ing to on photos 2618 and

2619 of Exhibi t “2”.

255. Accused number 2 d id not speak at a l l when he got into the

vehic le. He had a strong smel l of a lcohol . Whi le s i t t ing in the

car accused number 3 started to ta lk. Accused number 1 l i t a

c igaret te. Because Lekgot la does not smoke he got out of the

car. Accused number1 said “oh my brother I forgot that you do

not smoke ” . They al l got out of the car. They stood next to the

Jet ta in a semi-circ le. They could see each other ’s faces. The

l ight was br ight enough. The source of l ight was the sun,

a l though i t was set t ing. Accused number 3 spoke to Lekgot la

and accused number 1. He ment ioned that he was no longer

going because the top dogs said to h im i f he goes along, he

wi l l be the f i rst suspect. He was referr ing to going to

Postmasburg. While there Lekgot la saw another car enter

accused number 4’s premises. I t was a white s ingle long base

van. Accused number 3 said the two wi l l take Charl ie and his

f r iend, accused 2 and transport them to Postmasburg. They

wi l l get out of the motor vehic le, and the two wi l l go and do the

deal and af ter complet ing the deal they wi l l co me back, get

into the car and they wi l l t ransport them back to Danielskui l .

Lekgot la asked him why he does not accompany them and be

102

part of the t r ip. His response was that the top dogs said that

he must not accompany them. Bongz, accused number 1 was

also present when th is conversat ion took place. He said

nothing.

256. The Wildtrak van lef t accused number 4’s premises after the

long base van had lef t . Accused number 2 went to the Avanza.

On his return he came with four 750 ml bott les of Cast le L i te

beer. He put them at the back seat of the Jet ta. Accused

number 3 got into the Avanza and he drove off . Accused

number 2 to ld them to dr ive further on and wait for accused 4

at the T junct ion. Accused number 1 said Lekgot la should

dr ive. Lekgot la took over the dr iv ing and went to stop at the T

junct ion. I t is depicted on photos 9 and 10. Whi lst there ,

accused number 2 said accused number 4 was taking too long,

and delaying them. He to ld Lekgot la to phone him and ask him

where he was. Lekgot la took the phone and phoned Charl ie.

He asked him where he was. He said he is at Kui lsvi l le ; he wi l l

be there just now. They waited for some t ime and accused

number 2 repeated that accused number 4 was taking long. He

was dr inking f rom the beers which he put in the vehic le before

they left the tuck shop. Lekgot la phone d accused number 3

and he repl ied that he is on his way. He phoned accused 3 on

th is number ending in 114 (the suspect number). The reason

for phoning accused number 3 was to establ ish f rom him how

far was accused 4 because accused number 2 was saying that

accused 4 was delaying them. The answer but ton was pressed

but nobody spoke on the other s id e and i t went off .

257. Lekgot la phoned accused 4 to ask him how far he was. His

phone went on to voicemai l . Whi le s i t t ing there, af ter two or

three minutes accused number 4 arr ived dr iv ing the Wildt rak

van. He did not see clear ly whether there were other people

103

inside that Wild trak van. He got out of the Wild trak van, went

to the lef t rear window of the Jet ta, and handed a f i rearm to

accused number 2. He ment ioned that he would come back and

drove off . I t was a 9mm pisto l . Accused number 1 was in the

motor vehic le on the left f ront passenger seat next to Lekgot la

when th is happened.

258. Af ter a whi le accused number 3 arr ived dr iv ing the Avanza

accompanied by accused number 4. Accused number 4 got out

of the Avanza and go t into the Jet ta. He asked accused

number 3 where the phone is. Accused number 3 supported

and ment ioned that they must use the phone which was used.

Accused number 3 handed over a b lack Nokia cel l phone to

accused number 4. Accused number 3 drove off wi th the

Avanza. Lekgot la got onto the road. He was dr iv ing to

Postmasburg. When they arr ived at the T junct ion as depicted

on photo numbers 11 and 12, he turned r ight in the direct ion of

Postmasburg. The people who were having conversation was

accused numbers 4 and 2. Accused number 2 was saying to

accused number 4 that he delayed them. There was a bi t of

argument between the two and accused number 4 said to

accused number 2 that he is drunk. Nothing was said further.

They were l is tening to the radio.

259. Accused number 4 to ld Lekgot la to dr ive into town. At a stop

sign which is depicted on photo 18 and 19, accused number 4

to ld h im to turn lef t . He turned left . Whi le dr iv ing he saw a

board wri t ten Kolonel Mine. Accused number 2 said “daar is

d ie bakkie ” , referr ing to a motor vehic le which would have

parked on photos 20 and 21 as a reconstructed scene. In the

photo there is a minibus replacing Ford Ranger van. There

were two men standing in f ront of the Ford Ranger van.

Accused number 2 further said “ le t us get off here and go and

104

do our th ing ” . Lekgot la drove past the van to a certa in p lace

where there are some graves, as he depicted in photo numbers

22 and 23. According to Lekgot la , apart f rom the two persons

standing in f ront of the Ford Ranger van there were other

people on the street . When they got to that p lace next the

graves and al l got out of the Jet ta and passed some water.

There was an argument between accused numbers 2 and 4

whi le busy re l ieving themselves. Accused number 2 was saying

that they should get off there and go to do what they were

supposed to do. From there al l of them went back into the car.

260. Accused number 4 d irected Lekgot la to dr ive forward and turn

lef t as depicted on photo number 27. He compl ied. The black

Nokia phone which they received f rom accused number 3 rang

and accused number 4 said “h ier bel hy”, meaning he is

cal l ing. He further said that the phone be handed over to

Lekgot la because his voice is s imi lar or c loser to that of the

person who spoke to h im earl ier. Accused number 4 to ld

Lekgot la to te l l the cal ler to come to the old school, which is

s i tuated on the road leading to Griekwastad. Lekgot la d id as

to ld. The cal ler repl ied by saying he is coming.

261. The Ford Ranger van proceeded to the direct ion of

Griekwastad. Accused number 4 told Lekgot la to phone him

and te l l h im to dr ive to the ground s nearer to the school

premises. Lekgot la obl iged. The person on the phone agreed.

To recap, i t was not part of the p lan for Lekgot la and accused

number 1 to get anywhere close to the DA man and to speak to

the person. The plan was to drop accused 2 and 4 at a p lace

and wait for their return. Lekgot la test i f ied that he was now

fearing for h is own l i fe and as a result compl ied with

instruct ions. He did not know accused number 2 and saw him

as a person who was not afra id to do anything harmful . When

105

al l these were happening accused number 1 d id not object

about the deviat ion.

262. Lekgot la test i f ied that the Ford Ranger van came and stopped

next to the Jet ta. The f i rst person who got out was the dr iver.

He was a short person. When he got out accused number 4

said to Lekgot la to get out and go to greet them. When he got

out accused number 1 a lso got out of the car and he

accompanied him. The second person came out a lso f rom the

passenger seat of the Ford Ranger van and was in possession

of a f i le . Lekgot la and accused number 1 approached them.

They stood with them as demonstrated in photo numbers 31,

32, 33, 34, 34, 35 and 36.

263. The ta l ler man opened the f i le . On that f i le Lekgot la not iced a

company registrat ion cert i f icate and tax clearance number. The

short one took out h is phone and switched i ts torch/ l ight on,

used i t to i l luminate the documents because i t was a l i t t le b i t

dark at that t ime. Whi lst the four were concentrat ing on the

f i les, Lekgot la heard footsteps, saw accused number 4 a lready

being behind the ta l ler guy. When he l i f ted his head and looked

in h is d irect ion the f i rearm went off . Lekgot la and accused

number 1 ran in the direct ion of the Jet ta. For some few

seconds Lekgot la lost h is mind but af ter some few seconds he

recovered.

264. At the t ime accused number 4 creped to them, Lekgot la and

accused number 1 were engaged in conversat ion with the two

men. The ta l ler one was te l l ing them about h is company.

Lekgot la could not warn them of the danger because he would

have destroyed the plan and l ikely to be ki l led him self. When

Lekgot la regained his fu l l senses/or ientat ion, he saw the ta l l

guy ly ing on the ground. When he looked around to check

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where accused numbers 2 and 4 were, he not iced them some

distance from where he was, and were hold ing the short one.

Lekgot la heard the voice of accused number 4 say br ing the

car, or “br ing die kar”. Accused number 1 rushed to the dr iver

seat and Lekgot la got into the passenger seat of the Jet ta and

drove to their d irect ion. The keys had been lef t hanging in the

igni t ion by Lekgot la when he went to meet the two men. When

the car arr ived at them, they tapped on the boot and they said :

“open the boot ” . Lekgot la got out and opened the boot as is

depicted on photos 37 and 38. They placed the short person

inside the boot. At the t ime the short person had been pinned

down and was defenceless. He said nothing and was breathing

heavi ly. After he was placed in the boot Lekgot la returned to

the Jet ta on the lef t passenger f ront seat. The f i rst person that

entered the back seat was accused number 2 and was fo l lowed

by accused 4. They both used the lef t rear door as the r ight

one did not open.

265. Accused number 1 drove off f rom there and accused 4 was the

one who was direct ing him from the park and to turn lef t . He

drove unt i l the stop sign and turned r ight . Whi lst dr iv ing

Lekgot la real ised that they were on the road lead ing to

Kimberley and Danielskui l . That is the same road they used

from Danielskui l to Postmasburg. The last t ime he looked at

the speedometer the motor vehic le was moving at a speed of

200km/h. From the parking area at the school the person who

was in the boot kept on screaming and kicking or h i t t ing the

boot f rom the inside. Accused numbers 2 and 4 to ld h im to

keep quiet, using the Afr ikaans words “b ly st i l ” .

266. As they were t ravel l ing on the main road from Postmasburg to

Kimberley Lekgot la asked accused number 4 what he had

done. He repl ied: “nee man, nee man”, meaning no man.

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Accused number 2 asked him why he did not shoot the other

one also just there. Accused number 4 repl ied that the f i rearm

jammed. Accused number 2 advised him to take the magazine

out and try i t . Accused number 4 was busy with the f i rearm at

that t ime. Lekgot la test i f ied that he concentrated on the road

being concerned that the Jet ta ’s shocks were not in good

condit ion, was t ravel l ing at h igh speed and the road is a lso

known for stray animals.

267. Suddenly accused number 2 said “he opened the boot”. He was

referr ing to the person who was inside the boot. They

screamed at h im to c lose the boot . Accused number 4 asked

accused number 2 how to shoot h im. He advised him to drop

the seat back rest. Accused number 4 dropped the seat back

rest he was si t t ing on. Accused number 2 to ld h im to shoot the

man. The f i rearm was cogged or br idged by accused number 4

but the f i rearm did not shoot. Accused number 2 asked him i f i t

had jammed again and said: “shoot the man, man. Try i t

again ” . As Lekgotla was looking to the f ront , he heard the

f i rearm going off . He looked at the back and looked again at

the f ront and then the f i rearm went for the second t ime off.

Accused number 4 had his head and body up to h is shoulder

inside the boot through the opening he created by dropping the

back rest of the seat. Af ter a short whi le accused number 2

ment ioned that the man fe l l out of the boot. Lekgot la looked

behind but could not see anything because the boot l id/ cover

was opened and obscured his view. Accused number 4

instructed accused number 1 to make a U-turn. He compl ied

without saying anything. They found the man who was in the

boot ly ing on the tar road surface . The car was stopped a short

d istance from the man so that the l ight should not i l lu minate

him. Lekgot la, accused numbers 2 and 4 got out of the car and

went to where he was ly ing on the tar. Accused number 2

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suggested that he be removed from the road. The two dragged

him out of the road down the slope.

268. In the meant ime, Lekgot la rushed back to the Jetta to ld and

accused number 1 to dr ive off the place. Accused number 1

asked him i f they are leaving them in the large (bush).

Lekgot la repl ied that they are men, they wi l l sort themselves

out – they wi l l see how they get home. There was a motor

vehic le which was approaching f rom behind which appeared to

belong to the mines. The two drove back to Postmasburg. The

reason being that the motor vehic le was already fa cing that

d irect ion and they would rather use an al ternat ive route to

Kuruman. Accused number 1 was dr iv ing the motor vehic le at a

h igh speed.

269. Lekgot la test i f ied that the place where they left accused

numbers 2 and 4 is not far f rom Groenwater. Af ter passing

Postmasburg Lekgot la cal led his brother to request h im the

te lephone numbers of a t radi t ional healer, Mr Maphunye Nkwe.

He wanted to phone Nkwe and consult h im about the incident

that had just taken place. He regarded i t as bad luck

deserving interpretat ion and analysis by a t radi t ional healer.

His brother provided him with the requested cel l phone

numbers. He cal led Nkwe at least more than once.

270. Along the way accused number 1 asked what is i t that

happened, he is f r ightened. Lekgot la repl ied that he is equal ly

surpr ised and fr ightened. Accused number 1 ment ioned that he

wishes that there is no bul let hole in the car. Lekgot la repl ied

that is a lso his wish.

271. They drove up to accused number 1’s p lace where they got

the Jetta. They opened the boot and saw blood sta ins on the

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r ight rear bumper, at the back and also inside the boot. They

searched further and found a cel l phone, a camouf lage holster,

one cartr idge and one l ive ammunit ion. Lekgot la p icked them

up. Accused number 1 took them from him and entered the

house saying he was going to f lush them. Accused number 1

washed off the blood sta ins f rom the car. Lekgot la advised him

to wash the blood sta ins thoroughly f rom the car. He took the

van he had left and drove away. Along the way he cal led his

g ir l f r iend and picked her up and drove to Mothib istad. He

ment ioned that he had never used accused number 1’s phone

before he lef t . One of h is cel l phones was fu l ly charged and

the other one was f lat . Later that n ight he received a cal l f rom

accused number 1 who to ld h im that he was scared.

272. Lekgot la test i f ied that on the 18 t h accused number 4 phoned

him. He asked him where he was. He repl ied that he was

home. He asked him what t ime he arr ive home. Lekgot la asked

him how they left the place where they left them. He to ld h im

that he phoned Juluka (accused no 5) to fetch them where they

lef t them. He ment ioned further that he walked for a long

distance in the bush and that he f inal ly shot h im on the head ,

and that he cr ied l ike a bul l . He was referr ing to the short man

who was in the boot. We now know that i t was the deceased

Baait j ie in the boot .

273. Later that day accused number 4 again cal led Lekgot la to f ind

out i f they were f ine. Lekgot la asked him why did the plan

change. He said “man, do not be a l i t t le boy, be a man, do not

be a l i t t le boy”. Lekgot la mentioned that he wants h is money

that he paid for the diesel , R650.00. He repl ied that he worr ies

for nothing, he has got connect ions with the pol ice, with the

Hawks and also with r ich people.

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274. Af ter some t ime Lekgot la received a message on his phone. I t

was an E-wal let and the sender was Mr Legodu. In due course

Lekgot la had a conversat ion with accused number 4. He

enquired whether he received the money. Lekgot la conf i rmed

receipt of the money and asked who Mr Legodu was. He

repl ied that Mr Legodu is Juluka. Lekgot la test i f ied that he did

not ask him about the R20 000.00 because he did not see the

need for that money anymore, as people have lost their l ives in

that incident. Al l he wanted was the return for h is

d isbursement.

275. Lekgot la test i f ied that on the 17 t h he lef t wi th the cel l phone

that they discovered in the Jet ta. He handed i t over to Nkwe.

He gave i t to h im when he came to charge his phone at h is

parental home. Nkwe does not have electr ic i ty connect ion at

his p lace and charges his cel l phone at Lekgot la ’s parental

home. He gave him the Nokia N70 phone to use temporari ly

whist having his on the charger. Lekgot la took the SIM card

f rom the phone before handing i t over to Nkwe and threw i t

away. Lekgot la ment ioned that in the course of h i s

communicat ions with accused number 4 he to ld h im about the

th ings that were lef t behind. He to ld h im to destroy them.

Lekgot la then burned the cel l phone Nokia N70 and the

holster.

276. Lekgot la test i f ied that he fe l t bad about what happened and

was asking himself what to do or whom to speak to because

accused number 4 and others a lready to ld h im that they have

connect ions. He decided not to let other people suffer because

of h is act ions. He came to Kimberley and met an attorney, Mr

Schoeman who was arranged by his brother. They met at the

local Magistrate court bui ld ing. He expla ined what happened to

h im. He was advised to be taken to the Hawks off ices. Whi lst

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st i l l wi th Mr Schoeman, Lekgot la received a cal l f rom Colonel

Louwrens. He introduced himself as Captain Louwrens f rom

the Hawks and enquired whether he is speaking to Tiro

Lekgot la. He conf irmed. Captain Louwrens to ld h im tha t they

are looking for h im. Lekgot la repl ied that he was on his way to

their off ices and is accompanied by Mr Schoeman, h is brother

and mother.

277. Colonel Louwrens informed him that he is a suspect in a

double murder case which took place in Postmasbur g and

between Postmasburg and Groenwater. He read his

const i tut ional r ights to h im and enquired f rom him whether he

wi l l be in a posi t ion to answer the quest ions that he intends to

ask him. Mr Schoeman interrupted, and he requested him to

ask the quest ions so that they can hear what the quest ions

entai l . Captain Louwrens asked whether h e knows Zet Magawu

who has been arrested . Lekgot la replied that he does not know

him. Colonel Louwrens showed him the cel l phone records that

showed that there was communicat ion between his phone and

that of Magawu. Af ter Mr Schoeman had seen the record s, he

asked the captain to g ive them some t ime in pr ivacy. They

went to another room. I t was then decided that he should

cooperate with the pol ice. Asked why he l ied and said he did

not know Magawu, he repl ied that he had been advised by Mr

Schoeman that he must not say anything that would put h im in

t rouble, he is the one who wi l l be doing most of the ta lking.

278. On that same day of 1 September 2016, he to ld Captain

Louwrens everyth ing that happened. He was then informed that

the state is prepared to afford him the status of a witness in

terms of sect ion 204 of the Act. A statement was taken from

him the next day on 02 September 2016.

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279. Lekgot la test i f ied that Colonel Louwrens suggested that he

send him to Danielskui l and make enquir ies about the money

which was to be paid to them and i f possib le , obtain the

f i rearm which was used to commit the cr imes on the 17 t h of

August 2016. He agreed.

280. I t is not d isputed that Colonel Louwrens obtained authorizat ion

in terms of sect ion 252(A) of the Act f rom the off ice of the

Director of publ ic Prosecut ions. The aim was to have an

undercover operat ion by Lekgot la to see i f he could obtain the

f i rearm used in the commission of the offences f rom the

accused and further obtain the R20 000.00 they were

according to h im promised. I t was also to authorize Lekgot la to

lawful ly possess the f i rearm should he be successful in

obtain ing i t . He was also armed with a recording device.

281. For convenience sake and pract ical reasons, and not to

prejudice the accused involved , the Prosecut ion and the

defence agreed that the evidence be provis ional ly tendered ,

and i ts admission be dealt wi th at the conclusion of the t r ia l.

This approach was also just i f ied by the fact that the accused

involved denied ever meet ing Lekgot la on 3 September 2016.

Rel iance was placed on the decis ion , reasoning and

conclusion in S v Mtsabo 2009(1), SACA 513 SCA and re lated

cases. The Court was persuaded by the reasons provided for

the arrangement and saw no need to deal with the admissi b i l i ty

of the evidence separately and al lowed the evidence to be

tendered and be dealt wi th at the end of the case.

282. Captain Louwrens and Warrant Off icer Van der Merwe the met

Lekgot la at a road leading to Gamagara to set up the operat ion

on 03 September 2016. They gave him a device to use to

record their act ivi t ies . I t had a video and audio recording

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capabi l i ty. Lekgot la cal led accused number 4 to te l l h im that he

was coming to Danielskui l . The phone went on voicemai l , but

he nevertheless went .

283. He went to accused 4’s house. He found him accompa nied by

another person with dreadlocks. He was washing the Wild trak

Ford Ranger, white in colour. He greeted accused number 4

who said he did wel l by v is i t ing him. Lekgot la said to h im he

was just passing by f rom Jan Kempdorp and was on his way to

h is mother. Accused number 4 to ld h im that he spoke to the

person who is supposed to pay the money. Lekgot la asked him

who that person is. He said he is Ju luka. He asked him where

is Juluka. He said Juluka is at h is farm. Accused number 4

ment ioned that they need to put pressure on him to pay. He

must te l l h im that i f he does not pay accused number 1 wi l l

report what happened to the pol ice . Lekgot la asked him to

phone Juluka. He did phone. Apparent ly Juluka said he was at

the Corporat ion (Koporasie) .

284. Lekgot la test i f ied that accused number 4 showed him

documents f rom his workplace with CCMA case part iculars. In

those documents he not iced that he was accused of being in

possession of an i l legal f i rearm (s) at h is workplace. He asked

him about the al legat ion , and he repl ied that they are ta lk ing

nonsense, there is nothing l ike that . Lekgot la asked him

whether the Hawks members ever went to h is workplace when

they were looking for h im. He said no, they did not v is it h im at

h is workplace. He got the informat ion that they were looking

for h im and he vis i ted their off ices. Accused number 4

suggested that they should go to the corporat ion in town to

meet Juluka. The dreadlock person was not part of the

conversat ion. The two got into Lekgot la ’s motor vehic le and

drove away. Accused number 4 d irected h im how to get to the

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corporat ion.

285. Lekgot la test i f ied that whi lst in the company of accused

number 4 at h is p lace he had the device given to h im

act ivated. They were outside in a windy weather. This

contr ibuted to the dev ice not working as i t was supposed to.

He could a lso not just point the camera at h im as he would be

suspic ious and put h is l i fe in danger.

286. They stopped at the Corporat ion, accused number 5 came.

Accused number 4 got out of the car and went to the back

seat. Accused number 5 got into the motor vehic le and

greeted. Af ter he greeted, accused number 4 said to accused

number 5 that Lekgot la is the one who accompan ied them.

Accused number 5 requested that he be taken to the township

for h im to organise t ransport for church people . They drove

back to accused number 4’s house in the township. Accused

number 5 requested Lekgot la take him to one of h is taxi

dr ivers. Accused number 4 got off nearer to h is house, as he

st i l l had to go and complete the cleaning of the van. Lekgot la

took accused number 5 to h is taxi dr iver ’s p lace. They found

the taxi dr iver and he jo ined them en route to the church. A t

the church the two al ighted and met church people. From there

they returned to the car and dropped the taxi dr iver at h is

home.

287. From there they proceeded to accused number 4’s p lace. On

arr ival Lekgot la enquired about the money. Accused number 5

ment ioned that the si tuat ion was slow, and he could not make

any t ransact ions f rom his bank account. He enquire d from him

what the problem was. He said one cannot t rust “ these people ”

they may have his cel l phones tapped. Lekgot la switched the

motor vehic le a ir condit ioner on as i t was very hot inside the

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motor vehic le. Lekgot la said to h im he heard f rom accused 4

that they have their people in the Hawks and the pol ice. He

ment ioned that Charl ie and others got a t ip off f rom someone.

288. Lekgot la test i f ied that he recorded his conversation with

accused number 5 with h is two cel l phones. The recording was

played in Court and the t ranscr ipt admit ted as Exhibi t XX and

the Compact Disc (CD) as Exhibi t 10. Accused number 5

d isputes that he is the person speaking on the recording . For a

bet ter understanding of the conversat ion and to decide on the

conf l ict ing versions between the State and accused number 5

a summary of the conversat ion direct ly f rom the recording and

not f rom Lekgot la is imperat ive. For the sake of convenience, I

refer to the person that Lekgot la said i t is accused number 5

as Mr X pending the determinat ion at a la ter stage who the

person can possib ly be. The conversat ion went as hereunder.

289. The recording starts with the greetings and Mr X says they should go to the

location he wants to see Shorty as they want transport. Lekgotla then said he

has been phoning Charlie (accused no: 4) and said man, have you

absconded. Mr X said he told him to be careful, because they have nothing

in their possession, they are trying by all means to “bug” the phones; the

information they received is that they are intercepting phone calls and

listening to conversations. He therefore told him to speak briefly only.

290. Lekgotla said he had been phoning several times. Mr X says they told us to

be careful of this thing. He does not want it to lead to that one thing. He

further says because you (Lekgotla) and him (accused no: 4) are okay

(sharp), and that in fact Lekgotla was used ------ asked “I am?” Mr X says at

the motor vehicle – you were only used, but he is putting it summarily so that

it should not lead there, he says that they want him to arrange. Lekgotla

interjected and said what arrangement have they done with the money? Mr X

says he said he is taking responsibility. Lekgotla says Yes, and Mr X says he

116

is trying to make the trace disappear. He was trying to kill the trace so that

traces should not be many. He further says that if you go there and there the

one starts speaking to that one and that one, difficulties occur.

291. Mr X speaks on the phone and says “Hey Bro Short, I am at the school, you

can go back to the church I am coming. I am now trying to arrange a bus.”

Mr X says to Lekgotla: No I will do it. I say to you that a person will not be

able to escape where you put him. You have to have a sharp eye, a sharp

eye as to who is being given. Lekgotla says he does not know how this issue

is to be worked out. Mr X responds that about that he is the one to give out,

there are problems/difficulties.

292. Lekgotla asks about someone he has forgotten his name. Mr X says Zet.

Lekgotla confirms: Zonizelo, Bra Zet; he asks how is his thing going to be

worked out, how is it going/progressing. Mr X replies that he will be released

on the 22nd; there is no evidence at all. He further said the people are doing

delaying tactics, they said they have three witnesses. They took his

statement as to how did the Avanza came into Magawu’s possession.

293. Mr X was interrupted by speaking on the phone saying he want to help the

man. He then gives instructions to someone to go and collect “Oom Abel” he

must hurry up because he wants the person he is speaking to on the phone

to transport the mine “skof” (shift people) and thereafter to transport the Lime

Acres “skof”, he must hurry up and stop telling him stories. He then says

Oom Abel is at his house. Lekgotla says to Mr X they say why you gave him

the Avanza. Mr X replies that “yes, you see”. Even other gents, some in their

statements say they were with Zet on that day. He then says, they turned

them and said these guys are state witnesses, because they are not saying

anything that is implicating that man. They make them state witnesses. They

are now all over the place they are looking around, so they are using

delaying tactics; by saying they have three witnesses. He further says

Lekgotla does not understand they are playing a game. They said they have

three witnesses and request the court to give them a little chance. On the

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22nd, they have nothing they are buying time to see what they can get.

Therefore, on the 22nd there will be no “justification”.

294. Lekgotla asks, in that case what happens, do they grant bail or withdraw the

case. Mr X replies that they grant bail because they can’t first withdraw the

case, they say further investigations.

295. Mr X tells Lekgotla that he wants to quickly see one guy and they should

travel in Lekgotla’s motor vehicle. He wants to sort out transport issue and

get out of it. Lekgotla agreed. Lekgotla further says that he is afraid of that

man of that transport, he might say “ye-ye”. Mr X replies that I understand

your panicking, and that our being all over might start issues; he instructs

him to turn. He wants a man of the bus to transport people.

296. Lekgotla says when he asked Charlie - in fact when this thing was planned,

he said he also does not know he was only told. Mr X asks which one.

Lekgotla replies, that of that man. He just called him and say he is asking for

transport. We request transport to drop us there, they do their job and return

to the motor vehicle. Lekgotla says he was so frightened, if he did not wet

himself! At this stage it appears Mr X left the car and later returned. He says

they should turn at some guys. Lekgotla says to him that he heard Charlie

say they have someone within the HAWKS who is working with them, has he

heard or said anything. Mr X says there is nothing. He further says that he

warned him to be careful because the phones are being listened to and can

be traced through towers. However, all is dead. The car stopped and Mr X

got out, according to Lekgotla he went into a church.

297. Later, Lekgotla mentions that had he known the time he would not have

come. He went to see his mother and he has been trying to contact Charlie

telephonically without success, he decided to pass by. Mr X replied that he

did well by passing that side. Mr X later said the previous day he said to

those people he will sort out with them; to make it straight. Lekgotla

interjected and asked if there are other people. Mr X replied that he is

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referring to where the money should come from. He said to make things

simple he would not like much- he should make things right. He then

mentioned that it’s about losing by the organisation, Lekgotla asked, of the

ANC? Mr X confirmed. He further said that they had to realise that the only

way is to “take this one” for them to go to the elections, they can work harder.

But the thing is, this man has to be Mayor; there is someone who has to be

the Mayor. “If we win, even for you, hunger will be a thing of the past, even

you too, hunger/starvation is over. We will be on the payroll of that guy.

Remember I am a contractor. He will be pleased that they got their

Municipality back. The planning is from Upington.

298. Mr X then says that he told the gents that they should take two, so that if they

are two; Lekgotla asked who? Mr X replied, the hit men. He then said that for

the hit men to be involved was because of time, time was over or late.

Lekgotla then mentioned that when Charlie phoned him he said they are

requesting transport. He knew that Lekgotla is not reporting at work because

he is asking for transport, they are going to drop someone they will go and

do the job and return to car and leave.

299. The door of the car opened and Mr X spoke to a male person about their

unrelated things. After that the conversation between the two continued. Mr

X then says: to tell the truth, he did not know that they are the ones who

were going to do the job; because other gents delayed, they were out of time

that is the reason that they looked for other people. In response, Lekgotla

says that Charlie bad. He further mentions that he met Charlie in 2012 and

he did not know that he is that bad/sharp. Mr X agreed and says that he took

his thing and he took it crudely/ crookedly- that he used his thing/gun. Mr X

further says he can borrow his to someone but he takes out some of the

parts from it and replace them with other ones/ “blind”, it will not be shown on

the cartridges- because he does not trust them, when they pull a mission

somewhere, when they trace, it should not lead to him. These are small

things to him.

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300. Mr X says Charlie told him that when he turned he saw Lekgotla suck/go

down. Lekgotla confirms that he sucked and his mind switched off. When he

looked he saw the man down, when he looked other side he saw them

catching the other one. They were hitting him and he was frightened. One

said “hey bring daai ‘f’ car. He says did not that side of Charlie, he did not

know if he could end up hitting him as well. Mr X says it was because the

time was up and that is why they had to do the job. He, Mr X, had been

refusing that they should do the work.

301. Lekgotla mentioned that the thing that happened is causing him sleepless

nights, it was first time he saw a person do such thing on his face, since he

was born. He does not even eat, that day he only drank water. Mr X tells him

not to do that and advises him to take a small bottle of coke (my size) and

pour a bit of sugar in it, shake it and drink it. It will take out what is troubling

him. Lekgotla says the man he was with is also frightened, because they did

not know that it will be in their presence, they were only to drop them.

302. Mr X mentions that he told them that they must consider what will happen if

the person does not come alone; these things have to be two, they must tell

those gents/majita to bring two things, in case they are two should be once

off- kwaa! Kwaa! To be able to go, you understand! This man, my worry was

an eye-witness when there is another one. They then made that thing like

that. He further says that is the reason they phoned him he did not know –

for them to be collected. He then decided not to use his car but of those

Gents/Majita, because they had already arrived. They went to pick them up

at Groenwater. He then told those Gents/Majita that they are not to enter the

location, they should go straight to sleep at the hotel. Then the following day

they must leave “klaar”. Mr X further advises Lekgotla to sleep at night, drink

pain killers. Lekgotla says he has lost weight. Mr X replies that he is not used

to him to be able to notice if he lost weight. Lekgotla says Charlie knows him,

he said to him he lost weight, he said man we are used to these things. Mr X

says you will be okay; it will take a short while. He further advised him to

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sleep a bit during the day for the body to relax, because he is dehydrating,

must eat, even if it’s just a little.

303. Mr X mentions that he did that job on Thursday, to show them how it is done.

They brought them an R-5. They wanted them to remove him; he said leave

him. They went past in a car – he wore a coat and changed behind – The

man passed behind him and entered the house, when he stood at the

window he then released it – and hit him – He then shows Lekgotla a bullet

and says he hit with only one and points an estimation of the distance the

house was from them. He took him inside the house; “GUP”.

304. Lekgotla mentions that Charlie showed him a paper of Rhodes Flat and

concluded that it was another job. Mr X mentions that they made a mistake

there. He was also not aware and reprimanded them that they are only

starting to get work and why are they doing “sh…t”. They then said it is

information they got some time ago and they saw that man having withdrawn

money from the bank, and concluded that money was in the safe. They went

for the safe to open it to get money. When they opened, there was no money

but big weapons, Hunting Riffle. That is the reason they rushed to take this

man, it’s because of the previous case; they think it’s him who did this job.

He is not there – and things stolen are not Riffles – that is the reason he says

he is going to go out. All people testify where they were with him, he was not

where you say he went.

305. After Lekgotla mentioned that he had not seen Charlie in a long time and he

did not tell him what he was now involved in, Mr X mentioned that this thing

disturbed him for about five days and he wonders why, because he did not

take part in it, and he did not see what happened; then he said it’s because

he goes along with the big ones – Matona´ - it must affect him as well. The

thing is they want to work hard so that the man can win the elections. He

then points at someone he says he want to take him out with an R1- he is a

police officer – he will destroy him with an R1 – theses things are simple -

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That is why he does not want these things to get into someone’s blood

system because you get used to them.

306. Lekgotla says he did not take a look, he ran away and the one he was with,

Bongs also ran away, the others chased and caught him. The other one. Mr

X mentions that they should have hit him just there as well – he then

demonstrates how one uses “that thing” and finish the job”.

307. Lekgotla asks about the money. Mr X asks how much? - Lekgotla replies that

Charlie said R20 000.00 on the phone. Mr X proposes that to avoid tails,

because today it’s the 3rd, Hendricks (or John Riggs) pays on the seventh,

on the eighth when he phones him; Lekgotla interjects and says he does not

have his phone numbers. Mr X mentions that Lekgotla does have his phone

numbers. Lekgotla asks if he phoned him? Mr X says he sent him an e-

wallet. Lekgotla says he deleted that message. Mr X was starting to mention

his numbers, Lekgotla requests him to write them down.

308. Mr X says that if Tiro calls he must mention that he is going to bring goats.

He will respond by asking if he should he come to fetch them. He should say

to him to come and fetch them and bring money as well. The purpose is that

if someone is listening to the conversation he will hear other things, that it’s

about goats. Lekgotla should then say that now that he has got a van, can’t

he bring them. He will then reply that he will come with a van and will arrive

at a particular time at his place. Lekgotla should then say but you once said

you will come and you said I should reserve some cattle for you, and he has

five cattle for him. He has six cattle he wants to sell them at an auction. Mr X

will then reply that why he should not sell those cattle, it’s draught season -,

he can come the following day to fetch the money --- he will mention that he

does not have transport. He will look for transport later. Mr X will then provide

own his transport, and tow a trailer to convey the cattle. Whoever is listening

will conclude that these people are talking about cattle. He will ask him the

amount to be paid and he should say because of the drought he is

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requesting R4 000.00 for each, and as they are six, he can give him R20

000.00. If they are “tapping” the phone they will hear other things. They know

that he is farming. Mr X will then say he will use a trailer because it’s not a

lot. Lekgotla should then say he is serious he needs money to repair his

motor vehicle. Mr X will then say he can come to fetch some money. Mr X

will reply that he will transfer the money into his bank account. Lekgotla

should reply that he should not do that, his account is on an overdraft, it will

deplete/swallow his money; he therefore wants cash. Mr X will then look for

cash and the matter will be closed. They parted on that note.

309. The state presented evidence regarding an Identification parade for accused

number 2. It is common cause that at the proceedings before the Magistrate

accused number 2’s then legal representative, Mrs Lofty Eaton, indicated to

the court that she had agreed with accused number 2 to attend the

Identification Parade in her absence. Accused number 2 confirmed and an

extracts of the proceedings covering this aspect were in this Court admitted

as Exhibit ZZ. Mr Setouto confirmed that the contents of the document are

not disputed.

310. The Identification Parade was held on 17 November 2016 at the Kimberley

Police Station. Warrant Officer Kesekang Vincent Lehi testified that he was

tasked to take pictures of the parade and compiled an album of the photos

he took which was admitted as Exhibit “AAA”. The parade was conducted by

Captain Virtue. There was a one-way mirror room from where the witnesses

were to point at the person to identify. Warrant Officer Lehi was in the room

where the persons paraded were kept. Warrant Officer Lehi met Warrant

Officer Henk Van der Merwe who took him to the place of the parade on his

arrival from their LCRC offices which are not at the same building, Kimberley

Police station where the parade was held.

311. Captain Leon Virtue has thirty-four years’ service in the police service. He is

attached to the detective branch which is independent of the DPCI

(HAWKS). On 17 November 2016 he conducted the Identification Parade.

He completed a prescribed SAP329 form for identification parades. He

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completed the form as he went along the process of the parade. He

interviewed accused number 2 and explained his rights to legal

representation and he elected not to have one present. He also explained to

him the alleged charges against him and the purpose of the identification

parade. He was also told that he is free to make any reasonable request

regarding the parade and he made none. He asked him together with the

other persons in the parade if they were satisfied with the parade and the

answer was that they are satisfied. Captain Virtue wrote down the names,

ages, gender and addresses of the persons who were in the parade and the

names into the record.

312. He testified that the witness that was to identify a person in the parade, if

present, was brought by the Witness Protection Services to the parade. He

allowed people who were part of the parade to choose their positions in the

numbers allocated. There were eight male persons in the parade of almost

the same age, height, build and appearance. Tiro Lekgotla who was the

witness pointed out accused number 2 as the person involved in the case

within 20 seconds. He pointed him through the one-way mirror. A picture of

the person pointed was taken after he was requested to step forward (photos

3 and 4 of Exhibit AAA). It was only him and Lekgotla in the office. The form

completed by Captain Virtue was admitted as Exhibit BBB.

313. Under cross examination by Mr Setouto, Captain Virtue testified that on the

1st November 2016 a Warrant Officer who he knew to be the investigating

officer came to his office to request him to arrange for the identification

parade and provided him with information of what the case was about. He

also told him the name of the suspect. He however, did not see him on the

date of the parade. He found the participants at the parade office and no

one’s hands or legs were cuffed. The witness was first to be brought to his

office, after that he left him with the two people who brought him and went to

the parade room to attend to the participants. It was put to him that persons

on positions 11 to 14 appear darker than 8 and 9. He agreed that they

appear a little bit darker, something he did not indicate in paragraph 17 of

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Exhibit BBB. He mentioned that the differences in the participants’ height

were too slight. They were however, generally of the same complexion,

height, age and built.

314. The State called Ms Hilda Du Plessis. She is employed by Cell C Limited,

which is a cell phone service provider. She is employed in the capacity of

Manager: Forensic Liaison services. She is stationed at Midrand. As

Manager: Forensic Liaison Service her duties entail assisting investigating

officers of the SAPS in the investigation of crime where they require cell

phone number information that is suspected to have been used in the cause

of the commission of crime. Prior to working for Cell C she worked in the

same position for MTN for a period of 20 years. She underwent several

training courses with MTN. She, inter alia, did a Global System for Mobile

Equipment Systems Survey training and basic radio and optimisation

training. She also did Business Law and Business Management courses

with International School of London. She has done Criminal Justice and

Forensic Audit course with the University of Johannesburg. She had done

Global Information System training which is to plot the information on a map.

She did Criminal Profiling course with the University of South Africa. She

had now been working for Cell C for a period of 3 years. She underwent a

Basic Radio Planning and Optimisation training with Cell C. This Optimisation

training has to do with the base stations which is the working of the base

stations.

315. For the purposes of her evidence Ms Du Plessis prepared a certificate and a

certification both in terms of Section 15 of the Electronic Communications

and Transactions Act, 25 of 2002. In this certificate she states that she is

responsible for inter alia, the supply of information and call data on the Cell C

network pursuant to a request received from the South African Police

Service, law enforcement agencies and other institutions. She provided Cell

C information regarding Postmasburg CAS 88/08/2016 on a request

contained in CCR 38/11/2016 on cell phone numbers 0836646737 and

0613002183, and also on CCR 56/8/2016 on cellular telephone number

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0613002183 and 0840001593. Further, she supplied Cell C information on

CCR 39/8/2016 on cellular telephone number 0623700114 and on

CCR02/09/2016 on cellular telephone number 0747695971.

316. Ms Du Plessis mentioned that the CCR number that she has referred to is a

reference number allocated by the nodal point of the SAPS when they apply

for a section 205 Subpoena. They use that number for their record keeping

and is generated by the SAPS. According to them, the legal document that

should be used for a section 205 application of the Act, is Form C. They are

able to supply call data information even if the CCR number is not available.

What is important to them is that for as long as there is a section 205

subpoena with the relevant information regarding the investigating officer, the

date stamp of the Magistrate and that of the Prosecutor. They on that

information provide the required Cell C information. The CCR number can

be provided to them at a later stage.

317. She confirmed that she provided data at the request of Colonel Louwrens.

Under normal circumstances the information can be made available within 24

to 48 hours. But they do have emergency cases where the information can

be made available at short notice, for example, within two hours, depending

on the volume required. Emergency cases are those that include,

kidnapping, murder, cash in transit robbery and any other serious violent

crime. They also refer to these cases as life-and-limb situations.

318. She mentioned that the call data is generated in a Portable Document

Format (PDF) which is stored and communicated by the service provider and

cannot be altered, manipulated or tampered with by anyone while on the

service. The manner in which the integrity of the call data was maintained is

therefore reliable as contemplated in Section 53 of the Electronic

Communications and Transaction Act, 25 of 2002. She explained that when

the information is on the server, nobody can have access to that service or

can extract that information because there are millions of transactions that

are going through on the server.

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319. She mentioned that “call data records” are produced by a computer. It details

all calls and transactions that go through the switch board or exchange. The

records contain the number making the call, the date and time of the calls

made and received, the duration of the call and the call type; whether the call

was successful or unsuccessful, SMS made or received or any other internet

activity. The networks are used to transport the call data to a central point for

processing. The information is extracted from the central point and provided

to the investigation officer. Every call made is automatically generated by the

network onto the exchange to the cell phone called or second party.

320. She confirmed that the information that she supplied to Colonel Louwrens for

those numbers, which is contained in the print outs reflect electronic

representations within the meaning of data as it appears in the Electronic

Communications and Transaction Act, 25 of 2002 and also represent data

generated, sent, received or stored by electronic means or a stored record

as is contemplated in the definition of data message in the Electronic

Communications and Transactions act. The certificate in terms of section

15(4) of the aforesaid Act was admitted as Exhibit “GG”. 66 There was no

objection to the admission of the certificate.

321. Ms Du Plessis was referred to Exhibit “R” at pages 5 and 6 and she

confirmed that those were the subpoenas that she received at Cell C and on

the strength of which she provided information. She referred to a document

on page 6 which is signed by the Magistrate on the 22 August 2016. With

the two subpoenas that she received she was satisfied that they were

sufficient to provide information as she did. The manner in which the

integrity of the call data was maintained is therefore reliable as contemplated

in Section 53 of the Electronic Communications and Transactions Act, 25 of

2002.

66 This conclusion was not disputed and became common cause.

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322. Ms Du Plessis was required to explain some of the technical terminology and

abbreviations/acronyms used in their environment. MSISDN refers to Mobile

Subscriber Integrated Services Digital Network and she explained that it is a

cellular telephone number that was used in their records; IMEI number refers

to the Handset that was used and stands for International Mobile Equipment

Identity. It has 15 digits and Cell C only uses 14 digits. The Date and Time

column refers to the time and the date when the call was made or received.

Other Party shows the number that was either dialled or made a call or any

other activity that was made from that cell phone number or the other cell

phone number. Third Party column refers to when the phone was not used

or when there was call forwarding that went into voicemail; the cell phone

number that will appear in that column or if the cell phone was diverted to

another number then the number will appear in the Third Party column. The

Call Type column is the activity that is happening on the phone, whether it

was internet connection, or an incoming call or outgoing call or an incoming

SMS or an outgoing SMS. The Duration Column is the length of time that

the call lasted. She mentioned that incoming or an outgoing SMS will always

show milliseconds. There is a Cell Number column which is the identification

code for the tower that generated the activity from the cell phone number and

they have different identification codes. Handset name and type column

refers to the name and the model and what type of handset was used with

the cell phone number and the IMEI number. MTC stands for Model

Terminating Call which refers to an incoming call.

323. She further explained that the towers are broken into 3 different

panels/sectors designed in a clockwise operation. The one panel always

covers the north which is called sector 1. The second panel is sector 2 and

covers a southern direction. Panel 3 or sector 3 covers more to the western

side direction. The normal standard for the panel is to be set up in a

northern direction at a 0 degree. The second panel will be at a 120 degree

and the third panel sector 3 will be placed at a 240 degrees.

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324. Ms Du Plessis was taken through the activities of the phone numbers

appearing on Exhibit R on pages 10 and 11 regarding the numbers ending

with 2183 and 0114 and she confirmed the transactions as a true reflection

and accurate reflection of what transpired. Ms Du Plessis was referred to

pages 10 and 11 of Exhibit R and in particular to the call that was made from

the cell number ending with 2183 which is now common cause that it

belonged to the deceased Baaitjie. At 19:26:41 there was call made from

this number 2183 to the number ending with 0114 (Suspect number) that

lasted 7 seconds. At this stage this phone ending with 2183 was under the

coverage of a tower in Postmasburg. The next call was at 19:28:13 which

was an incoming call from the suspect number to this 2183 number that

lasted 18 seconds. At this stage the 2183 phone was still under

Postmasburg tower. Ms Du Plessis referred to two images that she had

prepared for her evidence which were admitted as Exhibit HH1 and HH2

respectively. In the two images there is an indication which is marked with 2

yellow pins to show the tower of Postmasburg as well as the tower

Posmasburg. She mentioned that the distance between Postmasburg and

Groenwater tower is predicted as 25.43 kilometres. The distance between

Posmasburg and Postmasburg is about 600m. She mentioned that the 2

towers were shared between Vodacom and Cell C network and possibly with

MTN. She mentioned that because the number ending with 2183 was for

one call served by Posmasburg and a few minutes later by Postmasburg,

indicates that there was some movement between the 2 towers by this cell

phone. The movement was from Posmasburg area into Postmasburg area.

325. The next activity on page 11 of exhibit R is a call that was made 23 minutes

after midnight which was now on the 18 August 2016 at 23:09. The relevant

tower at that time was Posmasburg, which means that the cell phone had

now moved back into the reception area of Posmasburg area. This is made

possible by the significant time between the call that was made at 19:28:13

and 00:23:09. From there, there was no activity on this phone which suggest

that the phone was not being used or simply, it did not either receive or make

any call or SMS messages. It also means that this phone could have moved

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back into the Posmasburg area tower long before midnight. It is to be noted

that on a cell phone, if there is no activity there will not be any indication as

to which tower serviced the cell phone. The towers are identified only

where there is an activity on the cell phone. This means the report is only

based on the data activity.

326. Ms Du Plessis was referred to page 13 of Exhibit R. She was referred to the

last two activities at 15:21:51 relating to the same number ending with 2183.

Before then there was an outgoing SMS from the 2183 number being sent to

a number ending with 1855 lasting 4 seconds at 13:21:15. Four seconds

later there was another message registered at 13:21:19. Seeing that the

difference between the 2 times is 4 seconds, Ms Du Plessis indicated that it

must have been 2 separate messages that were sent on this number at

different times. The transaction at 15:21:51 was an incoming call that went

through to voicemail box as a call forward. The tower that covered this

2183 number for this transaction is Danielskuil. It was put to her that

according to the evidence of Colonel Louwrens he collected this particular

cell phone at Postmasburg and the same afternoon drove back to Kimberley.

For him to drive back to Kimberley he had to pass Danielskuil.67 She

confirmed that it is possible that this activity happened when Colonel

Louwrens was on his way back to Kimberley passing Danielskuil. She was

referred to page 15 of Exhibit R indicating the RICA details of this number

and she pointed out that it is not in the names of the deceased Baaitjie and

she mentioned that it happens that false information is at times provided for

RICA particulars.

327. On something that became contentious it was indicated to the witness that

Colonel Louwrens sent this subpoena to get information on 18 August 2018

without it having a CCR number and that this CCR number was only

obtained by Colonel Louwrens the next day from the Nodal point in

Kimberley. This aspect was confirmed by the witness. She further pointed

out that on 18 August 2016 at 03:28 pm in the afternoon she was provided

67 This point is argued by accused number 3.

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with the CCR number per email address which read and I quote “Capt

Charlie said I must send you the CCR number of the Subpoena on

Postmasburg CAS 88/8/2016, Murder. Our reference number of it is

CCR39/08/2016”. This CAS number is the same as the one of this case

that Colonel Louwrens was investigating. It also referred to the same IMEI

number (Handset 358080018933250).68 It required information relating to

this IMEI number for the 17 August 2016 and that it was previously used with

a Vodacom SIM card. This email was admitted at Exhibit JJ.

328. Ms Du Plessis testified that this Exhibit JJ email was received from Northern

Cape Province, Crime Intelligence Unit – Office of Communication and

Interception Monitoring (CIU- OCO) and the person who sent it had email

address Mepio@saps.gov.za. Mepi is the co-ordinator at the POCO that

sent the email with the information.

329. She confirmed that when Colonel Louwrens emailed the subpoena in terms

of section 205 on 18 August 2016 in the late afternoon, by that time she

already had the CCR number as she had received Exhibit JJ. She was

referred to page 22 of Exhibit R on the activities of 17 August 2016 at 09:57

and pointed out that the times indicated do not have seconds. She

mentioned that because of the emergency of the situation and that she was

in a hurry to get the information to Colonel Louwrens, she forgot to format the

report into seconds as well. That is the reason why it only shows hours and

minutes. On page 22 of Exhibit R is the call data for the suspect number

(0114). According to Ms Du Plessis the activity at 9:57 indicates that a

voucher was loaded with airtime. Since the call type is used as USSD, is an

indication that internet was used to buy the airtime at this particular instance.

At that time this number was in Danielskuil.

330. The next activity was an incoming SMS from a centre code which was a

notification that airtime was being loaded onto the phone. Then at 9:58 there

68 It is to be recalled that Colonel Ramela sent the particulars of Baaitjie’s message and the suspect

number to Upington as directed by her commander for the processing of the application to the service provider for the data.

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is an activity which is for a balance check to see what airtime was still in the

phone69. Thereafter, an outgoing call made from this 0114 number to the cell

phone ending with 2183 which lasted 181 seconds and the 0114 number

was still in Danielskuil. The next four activities at 10:49, 12:51 and 12:51

were incoming calls that went to the voicemail box of the 0114 number. This

means that the phone was answered. The calls were from the number

ending with 2183 belonging to the deceased Baaitjie. She mentioned that

the conversation of 181 seconds would have used up all the airtime that was

purchased earlier on. At 14:03 a voucher for airtime was loaded however, a

wrong number was used. That transaction was repeated with a correct

voucher number entered successfully. At 14:03 there was a notification to

the 0114 number that airtime was loaded. Another voucher for more airtime

was loaded at 14:04. At 14:39 there was an outgoing call from the number

ending with 0114 to the cell phone number of 072 594 4900 which lasted 17

seconds and the coverage area for the already named call was Danielskuil.

At 14:21 is an outgoing SMS sent to the number 061 300 2183 of the

deceased Baaitjie from 0114 cell phone. At 14:43 is an outgoing call from

the cell phone number ending in 0114 to the cell phone number ending with

7092 that lasted 26 seconds and the cell phone number 0114 was still in the

Danielskuil area. At 17:27 outgoing call 0114 to number ending 2183 lasting

16 seconds still within Danielskuil coverage area. At 17:51 is a call received

from 064 600 5668 to 114 which lasted for 27 seconds still within the

Danielskuil tower coverage area. At 17:53 the 114 number made a call to

the number ending with 5686. At 18:03 it received a call from the number

ending with 5668 which lasted 10 seconds. At 18:14 the 114 number

received a call from 2183 which lasted 45 seconds. At 18:19 the 114 made a

call to the number ending with 322 and the conversation lasted 21 seconds.

At 18:49 there is an incoming SMS 27144 which according to the evidence

indicates an internet activity. These transactions are happening at

Danielskuil. At page 22 Exhibit R, at 19:50:15 there is no activity on the 114

number. Ms Du Plessis explained that if a person makes a missed call to

69 It is a coincidence that airtime is loaded onto the SIM card at a time the state alleges that a new SIM

card was acquired at that time and used for the first time then. This negatives the explanation that accused number one was using a cell phone forgotten in his car.

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another number it will appear on your records as an outgoing call but it will

not show on the receiver’s phone number call data because there was no

connection made to that phone number. At 19:23 is an incoming call from

the phone number ending with 2183 to the cell phone number 0114 that

lasted 48 seconds and the 0114 number was at the time in the Postmasburg

coverage area. At 19:26 there was also an incoming call with the number

ending with 2183 to the number 0114 that lasted 8 seconds also under the

coverage of Postmasburg tower. At 19:28 there is an outgoing call from the

number ending in 0114 to the cell phone 2183 that lasted 19 seconds also in

Postmasburg coverage area.

331. Ms Du Plessis was referred to page 23 of Exhibit R which is a usage profile

of the number ending with the number 0114. This number was first used on

the date of 17 August 2016 at 09:57:31 am. The last used date was on the

same 17 August 2016 at 07:28:13 pm in (19:28:13).

332. She testified that if the phone is in Danielskuil it will not benefit from the

tower within the coverage area of Postmasburg, because the distance is too

far and there will be clutter in between like mountains, hills, buildings or trees

that will ricochet the frequency back to the phone. Furthermore, if in

Danielskuil one cannot be covered by towers which are not in Danielskuil for

example, Postmasburg. As to the typical reach of a cell phone tower, she

indicated that in a densely build up area it will reach a maximum of 2km. It

might extend to 5km but that is in very rare occasions because there is a lot

of towers that are now built and in an open area the maximum that it will

reach is 15km. An example is the areas of Mthatha where it can reach 35km.

If there are several towers, it is always the tower closest to the cell phone

which would have the strongest signal and that will be the dominant server at

the time when the call or a message is made or received.

333. It was pointed out to the witness by Mr Els on behalf of accused number 1

that the deceased and his wife Dora Baaitjie testified that she made several

calls to the deceased’s cell phone throughout the night of the 17 August

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2016 and that he did not answer. In particular, she mentioned that she

called her husband from a cell phone number ending with 1165 to his 2183

number at about 7 pm and at about 9 pm that same evening, however there

is only one activity between the two cell phones which is at 19:04. Ms Du

Plessis replied that if indeed the calls were made they would have been

automatically recorded. Further, that the 1165 number is possibly MTN

number, therefore, if there were any calls from that number to the 2183

number it would have reflected on the MTN number as well. Since it is not

showing she doubts that these calls were made.

334. Mr Buthelezi asked her to explain the situation when it is indicated that the

network is busy. She replied that it means at that point in time all the slots

on the transmission are full and that one cannot make any call. But if one

calls a minute or a second later a slot might be opened and will be

accommodated to make the call. An attempt to make the call during

“network busy” will not be reflected on the call data because the call was not

successfully made. Asked what happens if the tower has a fault, she replied

that there are alarms that are set at towers and if there is any problem the

alarm will notify the network provider and Radio planners will immediately

check what the problem is and attend to it. Regarding lack of electricity or

power failure she replied that each tower has got its back up system and if

something goes wrong with power supply the backup system will

immediately take effect.

335. On the email she received, Exhibit JJ, she indicated that she received it on

18 August 2016 at 15:28. She mentioned that she could have received a call

from Colonel Louwrens after 6 pm on the 18 August 2016 asking her whether

she could supply information late that night and because she was already at

work trying to deal with her backlog work she was available to assist. It is

then that Colonel Louwrens sent to her a section 205 subpoena. By that

time, she had already received the CCR number from Mepi through the

email, Exhibit JJ. She could not explain how Mepi knew that the CCR

number was required. She also mentioned that whilst a person is driving and

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using a cell phone there will be different towers that will pick up the signal

from tower to tower as one is driving.

336. In response to a question from Ms Easthorpe on behalf of accused number

5 she conceded that with the call data and the tower one cannot give an

accurate spot where the person is but can only give you the area within

which a person was at the time an engagement on the cell phone was made.

She was asked what could be the factors that would affect transmission she

mentioned that weather conditions do affect transmission. It was put to her

that it does not mean that because you are closest to a particular tower, that

tower would have the strongest signal and that neighbouring towers can

have a stronger signal which can connect to that phone. She replied that the

closest tower to a cell phone is the one that would provide signal because it’s

the one that will have a strong signal and that’s how the system works. She

agreed that the “geographical factors” would also affect the range. She

mentioned that factors that might be there will only affect the connection but

have nothing to do with the strength of what the tower is sending out, i.e., the

strength of the frequency that is being sent out. She said it is just that they

cause a clutter in between such as buildings or trees and that will only have

an effect on the connection but not with the strength of the tower. She

mentioned that a tower that is 23km away can definitely not be stronger than

a tower that is 3km away from the handset. She was asked about load

sharing. The question was in fact that, if a tower that is 5km away fails the

one that is 10km away will pick up the signal. She replied that load sharing

has been abolished since 2005 and multiple towers were built within areas to

eliminate the possibility that the strength of a tower or signal should stretch

that far. She was asked about a coverage range and she replied that

coverage range is the geographical area where the tower has been set out

and the signal range is the area around the vicinity around the tower.

337. The state called Mr Tsholoang Gavin Golele. He testified that he is a

specialist in the Law Enforcement Agency Support Division of Vodacom. He

is a Radio Network Optimiser and also responsible for the release of call

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data by use of a directive. He has a National Diploma in Electronic

Communication and had several trainings on specific fields. He has been

working for Vodacom from 2016 and the field in which he is has been there

from 2007. He was previously employed by a company named ATEO

Corporations. He confirmed that the section 205 subpoenas directed at

Vodacom were indeed received by Vodacom and that, because they met all

their requirements they did produce the required data and RICA particulars

for the cell phone numbers ending with the following numbers 6133, 5668,

4900, 0085, 1424, 4322, 8227 and 3576. He knows Petronella Heyneke

who is the manager in the component in which he is working. He mentioned

that Vodacom normally produced their call data in PDF and Excel format.

The one provided in this case were in PDF format. This is the information

contained in Exhibit R pertaining to the numbers mentioned above.

338. Mr Golele prepared a document which was admitted as Exhibit KK, being

identification of several towers relevant to this case and their presumed

coverage areas. He also prepared a document admitted as Exhibit LL which

has the towers that he identified in Exhibit KK but has now shown the

coverage prediction map of these towers. He referred to Danielskuil and

Owendale towers and indicated that they do overlap. Overlap is done by

part of the sectors of the towers and not on sectors of the towers that

overlap, because others are facing at opposite and different directions. He

further indicated that Owendale and Groenwater overlap, and Groenwater

and Lohatla CC. There is however no overlapping between Groenwater and

Danielskuil. He explained that overlap simply means handover. The

handover is basically that if a person is on a call within one tower having a

signal, as he moves away from that tower into the direction of the other

tower, the latter tower will take over coverage of the signal. It means one is

being handed over for purposes of the use of the gadget. When handover

takes place, the person will not notice it. It happens automatically and

silently. He indicated that there is no overlap between Papkuil and

Groenwater.

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339. Reference was made to Exhibit R page 43 being a call data for the number

ending with 6133 belonging to accused number 3. On 18 August 2016 at

06:18:55 until 17:17:47 it used the Danielskuil tower coverage. It used the

IMEI number ending with 33250 only on that day. On 18 August 2016 at

08:27:03 a different IMEI number ending with 5994 was used. At page 22 of

Exhibit R the suspect number 0114 used the same IMEI number that was

used by the number ending with 6133 belonging to accused number 3. At

page 53 of Exhibit R relating to the cell phone number ending with 5668

belonging to Lekgotla, it shows that on 17 August 2016 at 15:52:30

Mothibistad tower was used at 18:49:08; Danielskuil tower at 19:47:47;

Groenwater tower at 19:52:38 Beeshoek CEN1 MTN used, at 19:57:53

Beeshoek tower, at 19:59:29 Groenwater Cen 2 and later Lohatla. He

mentioned that given the tower predicted coverage area depicted in exhibit

LL this number 5668 of Lekgotla was in motion moving between all these

towers.

340. He was referred to Exhibit R page 103 relating to a number ending with 0085

belonging to accused number 2. At 09:43:20 up to 18:58:47 it used the

Danielskuil tower. Then at 19:30:13 it used Postmasburg tower, which is a

distance of about 50 – 60km from Danielskuil. Page 104 at 20:26:32 it is

within Groenwater coverage area which is after plus minus 30 minutes. At

21:14:19 it uses Danielskuil tower. Mr Golele mentioned that it is definitely

impossible to pick up Groenwater tower if one is in Danielskuil and there is

also no overlap between these two, meaning there cannot even be any

handover from Danielskuil tower coverage to Groenwater tower coverage.

341. He was referred to cell phone number ending with 4900 belonging to Paulus

Mgcera, former number 6. On 17 August 2016 the first call was made at

07:23:54 which is on page 128, 129 and 130 of Exhibit R, until 22:15:52. He

received and made several calls between these dates. However, on 17

August 2016 all his activities are under one coverage area being Danielskuil.

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342. Reference was also made to Exhibit R page 156, the number ending with

1424 belonging to accused number 5 on 17 August 2016 at 19:24:01 it used

Danielskuil coverage, at 21:13:54 it was also Danielskuil coverage area.

343. Reference was made to Exhibit R, page 175 for the number ending with

4322 also belonging to accused number 5. On 17 August 2016 at 11:35:05 it

was using Danielskuil coverage area until 20:06:23. At 20:18:20 it used

Owendale NW; at 20:18:57 it used the Papkuil tower; at 20:21:45 Owendale;

at 20:26:32 Groenwater and at 21:25:51 Danielskuil. This is to be compared

with the number ending with 0085 belonging to accused number 2 which also

at 20:26:32 was also at Groenwater. It therefore means that at this time the

number of accused number 5 and accused number 2 were under the same

coverage area at the same time being Groenwater tower. It also shows that

the number 4322 belonging to accused number 5 must have moved between

the towers Danielskuil, Owendale, Papkuil, Groenwater and Danielskuil on

the times mentioned.

344. The next reference was made to pages 219 of Exhibit R for the number

ending with 3576 belonging to accused number 1. At 21:15:18 an outgoing

call to 2686 of accused number 4. At 21:56:22 number 3576 received a call

from 4322 of accused number 5 while the coverage was under Mogojane

tower.

345. Mr Golele confirmed that Lime Acres had its own two towers which he

showed on Exhibit NN. There is an overlap between Lime Acres and

Groenwater. This means that if one travels from Lime Acres to Groenwater

there will be a handover at some stage. And the tower that will be reflected

will be the one that originated the call. The handover tower will not be

reflected. Mr Golele was asked to explain the situation of an “off-set”. He

mentioned that if one is in the exact centre of two competing towers

coverage areas, there will be an offset, meaning that the tower with the

strongest signal will automatically set in and be the one providing the signal.

He however mentioned that it is a situation that hardly happens because they

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have configured the towers not to have this kind of situation. They set them

up in such a way that one of the two towers should have a stronger signal

than the other one.

346. Mr Cloete put to Mr Golele the version of accused number 5 as was put to

Colonel Louwrens and requested his comment. It was mentioned that

according to Ms Easthorpe, accused number 5 never went to Groenwater on

that particular date, he went to Lime Acres to pick up contract employees at

Finsch Mine, and that Colonel Louwrens replied by saying that he would

have expected that accused number 5 would have been picked up by the

Lime Acres tower. Mr Golele explained that if you are in Lime Acres

obviously you will be using the towers in Lime Acres. That is the reason why

there is a tower in Lime Acres to cover the people in that area. You can

therefore not be served by Groenwater if you are in Limber Acres. Lime

Acres is the dominant tower in that area, or its area of operation. It will be

the same if you are in Groenwater, it is the dominant tower in that area and it

will service a number that is within its area. He further mentioned that the

distance between Groenwater and Lime Acres are indicated as 15.5km.

347. The next witness is Johanna Petronella Heyneke. She is employed by

Vodacom in the capacity of Forensic Law Enforcement Agency Support

Component. She is also amongst others, the administrator of the network

event monitoring system which is the system which is used to generate the

call data records on which the call data records are generated. She received

a subpoena from Colonel Louwrens issued in terms of section 205 of the Act

on 06 September 2019. She confirmed that she provided the call data and

RICA registration particulars of the cell phone number ending with 7026.

She was requested to provide data for incoming and outgoing calls on this

number for the period 15 August 2016 until 20 August 2016 and from 01

September 2016 until 08 September 2016. She however, did not provide the

information for the period 1 September until 8 September 2016 because she

misread the subpoena due to the lack of time to prepare her evidence. She

was however, in possession of her Laptop computer and made the evidence

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required available. She prepared an affidavit/certification in terms of section

15(4) of the Electronic Communications and Transactions Act 25 of 2002.

Her affidavit was admitted as exhibit QQ. Her affidavit was read into the

record and like the others, I will not repeat the entire affidavit.70

348. She testified that the SIM card ending with 7026 was used in the Samsung

J81008 handset with IMEI ending with 94947 and the inception date of this

particular SIM card was 25 August 2016 and it was used in this particular

handset until 7 September 2016. It had a success rate of 630 transactions

being incoming and outgoing calls. There was no information on incoming

and outgoing calls from 15 August 2016 until 20 August 2016 as the

inception date was only 25 August 2016. The subpoena in terms of section

205 served on her was admitted as Exhibit PP.

349. Ms Heyneke was referred to page 177 of Exhibit R regarding the call data of

the number ending with 4322 belonging to accused number 5. She was

required to explain a situation that Mr Golele was unable to explain. What it

showed is that on 17 August 2016 at 20:06:23 going down until the time

21:25:51 there are several towers reflected namely, Danielskuil, Owendale,

Papkuil, Owendale, Groenwater and Danielskuil. Between Danielskuil,

Owendale and then Papkuil and Owendale which is from 20:18:20 until

20:21:45 there is a matter of few seconds and there is then Owendale -

Papkuil and Owendale. This appears to be an anomaly because the

distance between Danielskuil and Papkuil in Exhibit KK is reflected as

35.5km and the distance between Papkuil and Owendale is indicated as

35.2km. It also does not appear to accord with Exhibit LL being a predicted

coverage map prepared by Mr Golele.

350. In response to this, Ms Heyneke prepared a predicted coverage map

admitted as Exhibit RR. She mentioned that the red dot on Exhibit LL at the

right hand corner of the map, which shows the stronger signal of Papkuil

does not contain the whole coverage area or base station. The red area

70 The contents of the affidavit were not placed in dispute.

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contains the strongest signal which is between 70 - 84 DBM (Decibel

Milliwatts). The blue parts indicate medium signal strength between 85 – 97

DBM’s. The yellow part contains the very weak part of the signal between 98

-102 DBM’s. So if one has to measure the red parts indicated on the map,

the distance will be approximately 8km, the blue part distance is

approximately 11km and the yellow part is approximately 6km bringing it to

25km. Therefore, Exhibit KK page 9 that indicates 85km is not incorrect. It is

a total footprint of the base station. Responding to the anomaly shown at

page 177 of Exhibit RR she mentioned that there is a handover from the

Owendale base station to the Papkuil base station where the footprint goes

together, and looking on the data at page 177, the person using that

particular phone was travelling and lost a signal and he made a call to

exactly the same number and continued the call. The call dropped and it

shows that a call was missed. The call dropped while the person was most

probably using the phone and it must have been very close to the handover

area. That is the reason why the Papkuil tower was registered. There is

approximately 37 seconds difference between Papkuil and Owendale base

station 20:18:57 and 20:22:18 and 20:22:21 and 20:21:45. In short the

person was moving, he was on a call, the call dropped due to lower signal

levels, and he redialled the same number within split seconds he picked up

another base station because he was in transit. It was put to her on behalf of

accused number 5 that calls reflected at page 177 were made by accused

number 5 however, he did not go to Papkuil or Owendale or Groenwater, and

he made the calls when he went to Lime Acres. Ms Heyneke replied that

one cannot be in Danielskuil and pick up the Lime Acres base station. He

will either not be able to phone and receive a message on his/her phone. It

will show no signal or not be able to phone at all. So one cannot be in one

town and utilise the base station of another town. She further mentioned that

there are towers between Danielskuil and Postmasburg and also Owendale

and Groenwater which makes it even more impossible to be in Lime Acres

and use the base station of Danielskuil.71

71 Ms Heyneke’s explanation of the anomaly appears to be the only plausible explanation in the circumstances. Accused number 5 cannot benefit from the anomaly because his version is simply that

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351. Ms Heyneke was further referred to page 104 of Exhibit R being the call data

of the number ending with 0085 belonging to accused number 2, specifically

the calls that he made that are shown to be from Postmasburg, whereas

according to accused number 2 he was never in Postmasburg, he was in

Danielskuil. This therefore according to him, he picked up the tower in

Postmasburg whilst he was making the call in Danielskuil. Ms Heyneke

responded that it is absolutely impossible. The call data that Ms Heyneke

promised to provide was handed in as Exhibit QQ1.

352. The next witness called by the State was Mr Francios Samuel Moller. He is

employed at SBV Security Company in the capacity of Digital Forensic

Investigator analyst. His duties entail the investigation of mobile devices,

such as cell phones, SIM cards, Memory cards and anything related to

mobile devices. The second part of his functions entails analysis of the data

obtained from the mobile devices as well as communication data obtained

from different service providers. Prior to his current employment by SBV, he

used to be employed by the SAPS and resigned during March 2017, at that

time holding the rank of Lieutenant- Colonel. He had at that time served at

SAPS for 27 years. He was based in Pretoria in the capacity also of Digital

Forensic Investigator Analyst.

353. He was approached by Colonel Louwrens to provide assistance in this case.

This request was made to him whilst he was still a Police Officer. There is

therefore no justification for one to claim that he cannot be used as a

witness, only because he is employed by a private security company. The

request by Colonel Louwrens was for him to provide an analysis of the cell

phone communications relevant to this case. He prepared an affidavit with

several annexures. For the purposes of the analysis he used IBM12 Analyst

Notebook Software so that he could compile the timeline analysis. He

provided an analysis per each cell phone that is involved in this case

indicating the number of times, places from which calls were made and

he was not at those places when he made and received the calls.

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received, the towers used, the duration of the communications, and the

nature of the communications. He also analysed the usage of the cell phone

handset used by the suspect number being Nokia N70 and all the other SIM

cards that were placed in the said handset. He testified that the Nokia N70

was first utilised in 2014 with the number 082 219 6047. It was only utilised

on that specific day. The next number used in the Nokia N70 was 078 118

8125 which was on 17 October 2014. The next number was 081 801 1667

which is indicated as belonging to accused number 3. It was utilised in this

handset from 11 November 2015 at 13:19:51 up until 02 February 2016 at

07:06:56. The next number used in the handset was 072 838 5600 and the

start date was 8 March 2016 at 14:22:11 and the last time it was used was

on 6 June 2016 at 10:07:57. The next number used was 082 667 6133

which is indicated as belonging to accused number 3. The first starting

period for this number was 23 October 2014 at 17:26:49 until 19 February

2016 at 21:00:05. The second period starts from 25 May 2016 at 07:11:14

and it was last used on 17 August 2016 at 17:17:47. The next number used

on the handset was 062 370 0114 (suspect number) from 17 August 2016 at

09:57:31 and it was last used on 17 August 2016 at 19:28:13 by this number.

The last number utilised in this handset was 078 603 0122 and it was used

for 1 day being 18 August 2016. The affidavit of Mr Moller was accepted as

Exhibit SS together with its Annexures.

354. In response to a question that the cell phone of the deceased Baaitjie had

several people holding it and may have tampered with the evidence, he

mentioned that if one has done a function or transaction on the cell phone,

one cannot manipulate the information. One can only open the message

delete it or forward it to another cell phone. In essence the evidence of Mr

Moller coincided with the volume of evidence already tendered by Colonel

Louwrens and other witnesses pertaining to the call data and the cell phone

positions regarding towers etc. It bears no repetition.

355. The State called Mrs Rosemary Terblanche. Her evidence was tendered as

a result of what had transpired during cross-examination of Colonel

Louwrens by Mr Buthelezi on behalf of accused number 3. Mrs Terblanche’s

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appointment as a Magistrate and her approval of the section 205 subpoena

was placed in dispute. Mrs Terblanche testified that she is a Magistrate in

Kimberley holding the rank of Senior Magistrate. She has been in that

position since 17 or 18 November 2008. The certificate issued by the

Minister of Justice and Constitutional Development appointing her as a

Magistrate was admitted as exhibit ‘JJJ’. She testified further that she was

appointed by the Chief Magistrate, Kimberley, as additional Magistrate for all

towns in the Northern Cape. Her certificate of appointment was admitted as

exhibit ‘KKK’. She confirmed that she is the one who signed the section 205

subpoena on the 18th. She does work overtime at times, depending on what

she is required to do.

356. The State handed up a certificate/affidavit in terms of sections 15(3) and

15(4) of the Electronic Communications & Transactions Act, 25 of 2002. This

affidavit was prepared by Awicash Singh. Awicash Singh is employed by

MTN and confirmed that they had received subpoenas to issue some of the

information from MTN which is contained in exhibit ‘R’. The affidavit was

admitted as exhibit ‘CCC’.

357. Towards the conclusion of the list of witnesses to be called by the

Prosecution, the accused made certain admissions in terms of section 220 of

the Act. The first written statement was made by accused number 1 which

was read into the record. The admissions for all five accused are the same,

save for certain parts of their statements at paragraphs 8, 9 and 10. The

statement states the following: -

a. It is admitted that the deceased in count 1 was an adult male person,

Johannes Baaitjie.

b. It is admitted that the body of the deceased, Johannes Baaitjie, did not

sustain any other wounds or injuries since it was removed from the

scene as indicated on Exhibit ‘B’ where it was found until the post-

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mortem examination, Exhibit ‘NN’ performed by Dr Karin Stark on 22

August 2016.

c. It is admitted that blood belonging to the deceased, Johannes Baaitjie,

was found on the carpet and plastic cover removed from the boot of the

Jetta motor vehicle depicted on Exhibit ‘P’.

d. It is admitted that the projectile found at point ‘A’ of photos 1 and 2 of

Exhibit ‘D’ and the projectile removed from the body of the deceased,

Johannes Baaitjie, (photos 65 and 66 of Exhibit ‘B’) were fired from the

same firearm.

e. It is admitted that the deceased in count 2 was an adult male person,

Shuping Jeffrey Nouse.

f. It is admitted that the body of the deceased, Shuping Jeffrey Nouse, did

not sustain any further wounds or injuries (apart from medical

interventions), since it was removed from the scene as indicated on

Exhibit ‘C’ where it was found until the post-mortem examination of

Exhibit ‘OO’ performed by Dr Karin Stark on 25 August 2016.

g. It is admitted that blood belonging to the deceased, Shuping Jeffrey

Nouse, was found on material and swabs taken from the Ford Ranger

double cab that is depicted on Exhibit ‘C’.

358. The contents of the affidavit deposed to by Awicah Singh on 3 October 2018,

Exhibit ‘CCC” are admitted as true and correct. On behalf of accused number

1 it was pointed out that paragraph 9 does not apply to him and is only

applicable to accused number 5. The statement on behalf of Mr Hasane,

accused number 1, was admitted as Exhibit ‘DDD’.

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359. Mr Setouto, on behalf of accused number 2, also prepared a statement

which was admitted as Exhibit ‘EEE’. In terms of Exhibit ‘EEE’, all the

paragraphs except for paragraphs 9 and 10 are applicable to his client,

accused number 2.

360. Mr Buthelezi also handed up a statement in terms of section 220 of the Act

on behalf of accused number 3, which was admitted as Exhibit ‘FFF’. The

paragraphs and contents are similar to the previous exhibits on the subject,

save for paragraphs 3, 9 and 10 which are placed in dispute. In short, the

accused indicates that with regard to paragraph 3, he bears no knowledge of

the facts where it states that the blood of the deceased, Johannes Baaitjie,

was found on the carpet and plastic cover removed from the boot of the Jetta

motor vehicle depicted on Exhibit ‘P’. Paragraphs 9 and 10 are not applicable

to him.

361. Mr Steynberg also handed up Exhibit ‘GGG’ being admissions made by

accused number 4. In terms of the statement, accused number 4 agrees with

paragraphs 1 to 8 as contained in the other exhibits relating to the subject.

362. Mrs Easthorpe, on behalf of accused number 5, also handed up a statement

which was admitted as Exhibit ‘HHH’. The contents are also similar to those

of the previous exhibits on the subject. Relating to paragraph 9, accused

number 5 admits that the number 072 449 4322 as it appears on exhibit

‘UUA’, is in his handwriting. He is the one who wrote what is contained in that

document.

THE STATE CLOSED ITS CASE.

363. Mr Buthelezi, on behalf accused number 3, stood up with instructions from

his client to bring an application for discharge in terms of section 174 of the

Act. Mr Buthelezi read a lengthy document that was prepared in relation to

the application for discharge. In essence, and in a nutshell, the basis of the

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application should have been whether the State had, at that stage, placed

evidence before Court upon which a reasonable court might convict. It was

pointed out that the State’s case was weak and that the witnesses’ credibility

had been attacked. The application was opposed by the State. I made a

ruling not to accede to the application for discharge in terms of section174.

Indeed, the test is whether there is evidence upon which a reasonable Court,

acting carefully, can convict, and if the answer is in the negative, whether

there is a reasonable possibility that the evidence of the State might be

supplemented during the defence case. In this case, we have more than one

accused person. There are aspects which have been placed on record which

prima facie, link the accused number 3 to the commission of the offences in

this case. These are inter alia, that the SIM card that was used to lure the

deceased from Daniëlskuil to Postmasburg was obtained by accused

number 3; that the handset in which the SIM card which was used to lure the

two deceased to the scene admittedly belonged to him; that accused number

3 had arranged transport for the would-be killers; that he was part of the

group that had several communications before and during the commission of

the offence; that he had provided the cell phone that was ultimately used by

witness Lekgotla and others at the time of the commission of the offence.

These are some of the aspects of the case which link accused number 3 to

the offence. It was therefore in accordance with the law that he not be

discharged at that stage.

DEFENCE CASE

364. Accused number 1, Mr Richard Hasane, testified that he is 36 years old, did

Grade 12 at school and further studied for a National Certificate in Sales &

Marketing. He is from Giyani in Limpopo. He came to the Northern Cape in

2001. His home language is Xitsonga. He could also speak Setswana,

isiZulu, isiXhosa, Tshivenda and English during 2016. He had no knowledge

of Afrikaans. When he arrived in 2001, he initially lived in Kimberley and

moved to Kuruman in 2004. At the time of his arrest, he was employed at a

mine in Koffiefontein where he started working during June 2016. From

December 2015 he was not employed. He had a house in Mothibistad, but

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spent most of his time in Kuruman town with his girlfriend, who had been

allocated a house by her employer, a mining company. The arrangement

was that he worked two weeks in Koffiefontein and the other two weeks he

would spend in Kuruman, not at work. In 2016 he possessed four motor

vehicles, being an Audi, a Jetta, a BMW and a Golf 1. Three of the motor

vehicles were registered in his name. The Golf 1 had a personalised

registration number being “BONGZ NC” derived from his name Bongani. In

2016 he was using four cell phones. One was on contract and the other three

on prepaid. Three were with MTN and one with Vodacom as service

providers. He cannot remember all the numbers but one started with 076 and

the other with 081. He first met Lekgotla in June 2016.

365. He remembers that one day he had parked his silver Polo TSI with

registration “BONGZ 4 GP” in town. As he was about to drive off an

unfamiliar person came to him and knocked on the window. He opened the

window and the person greeted him by saying “Hello Bongz”. This person

told him “I know your house in Mothibistad, I also know your motor vehicle

that has powerful sound system” and further that he knows that he is working

at the Blackrock Mine. Accused number 1 asked him how he knew him and

where he stays. He mentioned that he normally passes at his place. He

corrected him and said that he is no longer employed at Blackrock Mine but

at Koffiefontein. This person asked him for his cell phone numbers and he

gave him a number. If he recalls correctly, it could have been the number

starting with 060 which was an MTN number. He did not take this person’s

numbers.

366. This person indeed called him a few days later. This person asked him

where he was. His reply was that he was in town. He asked specifically

where in town. He replied that he was in front of Leach Park. The person

said he wanted to see him and asked whether he could come over. Accused

number 1 replied that he could come. After some time, the person arrived. It

was indeed the same person he met previously who happens to be Lekgotla.

He showed Lekgotla the residential complex at which he was staying in

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Kuruman. Lekgotla told him that he had a business. He asked him what kind

of business. He replied that he was selling stones and he asked if he could

assist him with the sale of these stones. Accused number 1 said he does not

know people who could be buyers. Lekgotla told him that he is well-known

and famous and should be able to think of someone. Accused number 1 told

him that he knew of a coloured person staying in Wrenchville, who had

indicated that he had some knowledge of stones. Lekgotla said he was going

to leave the stone with him so that he can see the person he is referring to.

367. The stone was covered with a tissue paper. Accused number 1 left for

Koffiefontein where he was working. Whilst there he received a call from

Lekgotla asking him about the progress he was making on the sale of the

stone. He told him that he had not yet met the buyer, but will be coming

home the following week, which was a Saturday in July.

368. The following week he came home. He had a project of renovating a primary

school in Tsineng. Whilst there, he received a call from Lekgotla who asked

him where he was. He told him about his whereabouts. Lekgotla asked him

about the stones and he told Lekgotla that he had not yet got the buyer.

Lekgotla indicated that he had a buyer and wanted the stone. He told him

that he could not come home, but asked him to go to the complex where he

stayed and he will open the gate remotely with his phone and he will ask his

girlfriend to meet him at the house to hand him the stone. Accused number 1

testified that he then called his girlfriend and indicated to her that a person

would be coming to the house. Indeed, according to him, things went as

arranged. Lekgotla went and obtained the stone from the girlfriend.72

369. The next time he met Lekgotla was on 16 August 2016 in Kuruman. He was

sitting at his place with his younger brother and cousin, drinking beers.

Lekgotla drove past and immediately reversed to his premises. Lekgotla got

out of the van. He was alone. Accused number 1 walked towards him and

stood outside the van with him. They exchanged greetings. Lekgotla asked

72 By this averment accused number one is in fact saying his girlfriend illegally possessed a diamond.

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him when did he return from Koffiefontein and he said Sunday. Lekgotla told

him that he had some problems at his workplace and had been suspended

for committing fraud. He was, however, still receiving his salary but with no

allowances. He asked Lekgotla to whom the van he was driving belonged.

He mentioned that it belonged to him but that he did not use it frequently. He

lent his Polo to someone who had gone to Pretoria. Lekgotla saw the Audi

and the BMW on the premises. He asked accused number 1 to whom did the

BMW belong. He told him that it belonged to him. About the Audi he

mentioned that he had to arrange with his cousin to buy the Audi for him as

he was blacklisted with the Credit Bureau. Lekgotla mentioned that he should

have told him about this problem because he knows people in Pretoria where

he lived who are capable of removing or clearing names from the blacklist.

370. Lekgotla mentioned that if accused number 1 needs a firearm he must tell

him because he has connections with people who sell firearms in Pretoria.

As proof, he took his phone and dialled a number. He spoke to someone and

thereafter he told accused number 1 that he had just enquired whether they

had firearms for sale at hand. The connection indicated that they only have

big and not small firearms. Lekgotla mentioned that he has financial

problems as he was no longer receiving his allowances and the money he

was receiving was not enough to provide for his needs. He mentioned that

he had an arrangement with guys from Pretoria to rob a white man on that

day the 16th August 2016 in Reivilo. He mentioned that an employee of the

white man tipped them that the white man had money at his farm and

disclosed where he kept it. Lekgotla received a call and when he was done

talking, he mentioned that the call was from the guys from Pretoria reporting

that they had arrived. They parted ways and never met again on the 16th.

371. Accused number 1 testified further that he slept in Kuruman on 16 August

2016. The following morning, he went to Maruping village where he had a

tender for a tennis court. Whilst there, he received a call from Lekgotla who

asked him where he was and he disclosed his location. Lekgotla said he

wanted to see him and enquired as to when was he going to be in

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Mothibistad. He said he will phone Lekgotla when he is in Mothibistad which

would be between 11:00 and 13:00 that day. Around midday, he drove to

Mothibistad. On the street leading to his house, he drove past a van. The van

followed him and parked next to him. Lekgotla got out of the van. Lekgotla

asked accused number 1 to assist him with transport to Daniëlskuil. When he

asked Lekgotla what he was going to do in Daniëlskuil, Lekgotla replied that

he is going to fetch two of his friends. He had promised them that he would

assist them with transport on his return from Groenwater where his mother

resides. He asked him why he can’t use the van because the three of them

would fit in it comfortably. After having said that the van was too small,

Lekgotla changed his answer and said that it was heavy on petrol. He told

him that he cannot assist him with the two cars, because both the Audi and

Golf required service. He told him that he has a friend by the name of

Gauteng, who normally assists in transporting people and goods. He called

Gauteng and he mentioned that he was in Vryburg but is willing to assist. He

asked him what time the man wanted transport and he said at five o’ clock.

He asked how much the man was willing to pay and he said they will discuss

that when they meet. He mentioned that whenever he and Lekgotla spoke, it

was always in Setswana and not any other language. The two then parted

company.

372. When Lekgotla left, accused number 1 went into the premises and sat with

his cousin and brother. Lekgotla phoned and asked about Gauteng. He told

him that he had not arrived yet. He mentioned that Lekgotla phoned many

times enquiring about the transport.

373. In the course of the day, accused number 1 left to collect his girlfriend in

Kuruman. He also went to his friend, Dr Mcwebu. He was driving an Audi. He

was in conversation with his friend when Lekgotla phoned again to enquire

about the transport to be provided by Gauteng. He told Lekgotla that he was

on his way to his residence. He went home and whilst home, Lekgotla

arrived. He left with Lekgotla with his Audi to fetch his girlfriend at Hi-Q

Garage. She normally knocked off between 16:00 and 17:00. Having

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collected her, they went home. At the premises a Jetta was parked in front of

the garage. Lekgotla asked him to whom the Jetta belonged and he replied

that it belonged to his girlfriend. He asked him why he does not borrow it

from his girlfriend.

374. Accused number 1 went to his girlfriend and told her that Lekgotla was

borrowing the Jetta. She asked why he does not use the van he was driving.

He replied that he had said that it is heavy on petrol. She asked whether he

wanted to help him and he said he was willing. She then asked if he was

going by himself. He said no, he will be accompanying him. At the time

accused number 1 was expecting two men from Pretoria, being Thuli and

Motsepe, who were visiting him in Kuruman for the first time. He agreed to

accompany Lekgotla when he heard that they were only just passing

Schweizer-Reneke and Daniëlskuil was only 80 km away and as such he

could return before they could reach Kuruman from Schweizer-Reneke. He

left the house and he found Lekgotla outside speaking Afrikaans on the

phone. He did not understand Afrikaans and as such he did not understand

what he was saying on the phone. They got into the Jetta and drove to Leach

Garage where they filled up diesel which Lekgotla paid for. It was his

condition that for him to assist Lekgotla, Lekgotla must fill up the tank of the

Jetta with diesel. He estimated that a full tank would cost about R1, 000.00.

He wanted R1, 000.00 from him, but Lekgotla did not have cash. The idea

was to fill up with R700.00 and keep R300.00. Lekgotla said he will swipe his

card and promised to pay him the balance in cash.

375. Accused number 1 drove to Leach Garage and parked in front of a liquor

store. He entered the liquor store to buy a six-pack of 440 ml bottles of

Windhoek Draught. He bought a 1 litre bottle of Ginger Stoney for Lekgotla

who said he does not drink alcohol. He also bought for himself a packet of 20

Peter Stuyvesant cigarettes. They drove via Dr Mcwebu’s house and

dropped something for him at his gate. He phoned Gauteng and Gauteng

said he was between Vryburg and Kuruman. He estimated his time of arrival

in Kuruman to be 6 o’ clock. He told Gauteng that he had decided to assist

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Lekgotla. He drove towards Daniëlskuil. Along the way, Lekgotla kept on

speaking on the phone. He could not understand what he was saying as he

was communicating in Afrikaans. They ultimately arrived in Daniëlskuil. The

time could be estimated at around 6 pm. The sun was beginning to set.

376. He stopped at the garage and entered the shop to by himself something to

eat. He bought two sandwiches and returned to the car. He sat in the driver’s

seat whilst eating his sandwich. Lekgotla was busy on the phone, still

speaking in Afrikaans. After the call, Lekgotla mentioned that the plan has

changed and he has to collect these people at the crossing at Postmasburg.

Lekgotla offered to drive the vehicle to give him an opportunity to eat. He

mentioned to Lekgotla that they should not drive further on as he is expecting

people from Pretoria who are working for the Road Accident Fund. Lekgotla

mentioned that the people he is collecting from Postmasburg actually live in

Postmasburg and he is the one who had said they must go to Daniëlskuil. He

offered to pay accused number 1 an extra R1, 000.00 for proceeding to

Postmasburg. Accused number 1 agreed and he drove from the garage to

the township. They drove past the mine and stopped for a while at a crossing

in the direction of the township. Lekgotla got out of the motor vehicle with the

phone in his hand. After some time, he returned to the car and mentioned

that he does not have airtime and that the people are not where he had

expected them to be at the crossing. He suggested that they go to the tuck

shop to buy airtime.

377. Lekgotla drove onto the road leading into the township. He stopped and

parked the vehicle about 10 meters from the tuck shop. He entered the shop

where he spent some time. On his return he came accompanied by a male

person. Accused number 1 could not see this person clearly as he was not

concentrating on them. They stood outside the car for some time having a

conversation. Thereafter the man left and Lekgotla came to the car. When he

came to the car, Lekgotla was speaking on the phone again. He boarded the

car and complained that the people they were supposed to fetch were not

there and they said he must go to the crossing and wait. He made a U-turn

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and drove back to the crossing where they were earlier on. They stopped

there until it got a little bit dark.

378. In between Lekgotla was busy on the phone while they were waiting. After

some time, a white van approached from the direction of the town. Lekgotla

mentioned that it is a police vehicle. He pointed at a person he said is his

friend who got out of the said police van alone. He greeted from the outside

and spoke to Lekgotla. He could only see that he was wearing a black jacket

and that it is a male person at the time he was talking to Lekgotla from

outside of the vehicle. He attempted to open the rear right door and accused

number 1 told Lekgotla to tell him that the door does not work and that he

must use the left rear door. He did so and the man boarded the Jetta at the

rear left side. He did not see his face. They were talking in Afrikaans. After

some time, a motor vehicle approached from behind. He could see through

the lights that it was a motor vehicle (headlamps). Then a person came from

the motor vehicle. He spoke to Lekgotla through the window of the motor

vehicle and also attempted to open the rear right door. Lekgotla informed him

that the door is not functioning and that he must use the left rear door. This

person turned and walked towards the back of the Jetta they were travelling

in. After two minutes he opened the left rear door and entered and sat behind

accused number 1 who was a passenger in the front seat. According to

accused number 1 neither of these men spoke to him. They only spoke to

Lekgotla and only in Afrikaans which he could not understand.

379. They left Danielskuil at around 7 pm and did not stop until they reached

Postmasburg. They drove passed a VW garage on the right. Lekgotla

stopped and parked on the left side of the road. They communicated for a

short while and Lekgotla alighted the Jetta. The left rear door opened and the

two men also alighted. Accused number 1 was left alone in the vehicle. He

searched for a beer under his seat but could not find one as he had

consumed all of them. He remembered that the last time he had been there

at the VW garage to bring a motor vehicle, there was a liquor store and a

tavern nearby. He decided to go and buy himself some beers. He told

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Lekgotla that he is going to the tavern to buy beers and that he will collect

him there to proceed with their trip. A minute thereafter he noticed the Jetta

driving slowly towards him. Lekgotla said to him that he is just hurrying to

quickly drop the guys at the township and he will find him at the tavern on his

return. He promised not to be long. He told Lekgotla that it is fine, he can go,

and he left. The bottle store was closed and he entered the tavern. Inside the

tavern he searched his pocket and realised that he had left his wallet in the

motor vehicle and did not have any coins in his possession. His 060 cell

phone with a flat battery was in his pocket. The 078 cell phone was left in the

motor vehicle. He found people inside the tavern playing snooker. The tavern

was not full. After 5 to 10 minutes he went out of the tavern as he did not

have any money.

380. He went to a four way-stop to wait for Lekgotla. He kept him standing there

for about 30 to 60 minutes. He saw a motor vehicle coming from the direction

from which they earlier approached Postmasburg. Lekgotla could recognise

him where he was standing as he was not far from the road. He stopped and

accused number 1 boarded the Jetta. He asked Lekgotla why he had taken

so long. Lekgotla did not answer. He was now alone in the car. Accused

number 1 took his cell phone and looked at the screen and noticed that he

had several missed calls on his 078 number. He ordered Lekgotla out of the

driver’s seat and he took over the driving. He drove to Kuruman via Kathu.

This was around 8 pm. He went via Lohatla as it is the shortest route to

Kuruman from Postmasburg. He was not instructed to use that road, he did

so on own accord as he had used it before. Along the way Lekgotla was

speaking on the phone in Setswana, but he could not follow the discussion.

They drove to his premises in Kuruman. They both got out of the Jetta and

he went to knock on the front door. There was no response and he went to

knock at the kitchen window at the back of the house. There was still no

response. He returned to Lekgotla just in front of the garage. At that time, he

thought that there was nobody inside the house, because normally the Audi

would be parked outside the house and it was not there. The door of the

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garage was difficult to open and he normally used force to open it. That door

was locked. He forced the garage door open slightly so that he could enter.

381. When he entered the garage he found the Audi parked inside the garage to

make room for the Jetta to be parked in front of the garage. He went to the

bedroom and found his girlfriend sleeping. He tried to speak to her by asking

her whether the people from Pretoria had arrived. She did not respond. He

had locked the Jetta as he entered the house and when he came back he

found Lekgotla next to the Jetta, busy wiping something off the surface of the

car. He told Lekgotla that he is going with him to Mothibistad because his

girlfriend does not want to speak to him. He asked Lekgotla what he was

doing. He said they might have driven into birds or some animal on their way

to Kuruman because there are some bloodstains on the bumper. He said it is

fine and Lekgotla should drop him at Mothibistad where he lives. The area

where the Jetta was parked was illuminated by lights on the premises. They

were not very clear. One had to get close to the Jetta to see what was on it.

382. Accused number 1 got into Lekgotla’s van and Lekgotla drove out of the

premises towards Mothibistad. Just before they left the town, Lekgotla asked

to use his cell phone as there was someone he wanted to check something

with quickly. It was between 9 and 10 pm. He lent him his phone to make a

call. He dialled the numbers and after some time said he could not get hold

of that person.

383. According to accused number 1 because the battery for his cell phone with

the number 060 was flat, he exchanged it with a battery of a similar phone at

his girlfriend’s house. As they were driving, Lekgotla indicated that he wanted

to drive through Seodin to see one of his friends. At Seodin they went to

some premises with a two roomed house. Just what he forgot is that from his

premises in Kuruman he took three bottles of beer from his fridge. Lekgotla

entered the house, he spent some time inside the house and later he came

out with a man with dreadlocks. He introduced this man as Maphunye who is

a traditional doctor/healer. He told him that he helps him a lot and that should

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accused number 1 need to check himself, he can use this man. Accused

number 1 got out of the car and they entered the house. The dreadlocked

man took out some things and threw them on the floor. They appeared to be

bones. After that he said man, the people of Kuruman don’t like you, you

have “bad luck”. He said that he cannot do much for him, but could for now

only sprinkle him with some water. He took the two of them into a nearby

bush and sprinkled some water over them. They then drove back to the

traditional doctor’s place and dropped him there. The traditional doctor asked

him if he had some motor vehicles and he said yes. He said he must speak

to Lekgotla, Lekgotla will contact him. From there they drove to Mothibistad.

Lekgotla left him at his place.

384. He found a Polo parked on his premises. The BMW was also still there. He

got into the house and found the people he was waiting for, inside the house.

He woke them up. He was meeting them physically for the first time as they

had been communicating through the phones. He introduced himself to

them. They were taken to his house in Mothibistad by his wife. He had

arranged with his wife to pick them up at the Spur restaurant. After speaking

to them, he took his Golf 5 motor vehicle which was in Mothibistad and drove

back to his girlfriend’s house in Kuruman. When he arrived he realised that

his cell phone starting with number 081 was not in his possession. He

recalled that he had last lent it to Lekgotla when he wanted to make the call

when they left town and he never returned it. He phoned Lekgotla and

reminded him that he was having his phone. Lekgotla confirmed and

apologised, saying that it was his mistake. He undertook to bring the phone

to him the following morning. That was the last time he spoke to Lekgotla on

17 August 2016.

385. The next morning, 18 August 2016, when he switched his phone on, he

noticed that Lekgotla had phoned his number 060. He could not recall

whether he had called Lekgotla back or if Lekgotla had called him again, but

they did communicate. Lekgotla said to him that he was going to bring the

phone. He requested accused number 1 to check for his wallet inside the

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Jetta. He mentioned that he was in possession of a bank card that he had

swiped when he filled the Jetta with diesel when they left for Daniëlskuil but

that he cannot find his wallet. He told Lekgotla that he was still sleeping but

he will wake up later because he was supposed to go to Maruping for his

project around 11. He will make arrangements for him to get his wallet

should he find it. He sent his stepson with the keys to the Jetta to look for the

wallet. He returned and said that he could not find the wallet, but saw

something that appeared like a wallet, but which was a holster of a firearm

and a bullet.

386. He phoned Lekgotla between 9 and 10 to report that he could not find a

wallet but that he had found some other items. Lekgotla told him that he was

already in town and will come to his premises. Lekgotla came and he

showed him the two items being a holster and a live bullet. He handed them

over to Lekgotla and enquired from him how they got in the car and whether

he has a firearm. Lekgotla said he forgot those things inside the car when he

came from Postmasburg the night before. He took them saying that he is in

possession of a firearm. He simply forgot those things in the car. As they

were standing next to the Jetta, he realised that there were some bloodstains

on the Jetta. He remembered that the previous night Lekgotla was trying to

clean the bumper of the Jetta. He said to Lekgotla that he had to go to

Maruping to check whether his people were busy working there. He then

opened the boot with a view to show Lekgotla some papers. He used a key

to open the boot as it was the only way to open it. The locking mechanism

did not work from inside. Inside the boot he saw a Nike tekkie. He handled

the tekkie (a training or canvas shoe) believing that it was his girlfriend’s

tekkie. Lekgotla said the tekkie belonged to one of his friends he went to

fetch from Postmasburg. They must have left the tekkie inside the boot when

they changed their mind and took their bags out of the boot as they initially

wanted to go to Kuruman. Lekgotla took the tekkie. He also took the holster

and the bullet and left with them. He also gave him his phone back which he

then put on the charger. When he looked at the phone, it had a message

saying “INSERT SIM CARD”. He asked him what happened to his SIM card

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and Lekgotla replied that he did not know but that maybe the children took it

out. He promised to buy him a new SIM card to replace that one. Lekgotla

said he must clean the Jetta because his girlfriend might complain that it is

dirty. He told Lekgotla not to worry and said that he would clean it as he

intended to use it to drive back to his workplace.

387. Lekgotla phoned again the Sunday and asked whether he had indeed

washed the car. He said to him he should not worry about washing the car

he will do so when he finds time. Sunday he was going to drive the car back

to his workplace. Lekgotla said to him even if he could do a valet spring

clean he would pay for it. He told Lekgotla not to worry he will attend to it.

This was a telephonic conversation.

388. Accused number 1 testified that on 18 August 2016 Lekgotla phoned him

again from an unknown number. He asked him whether he had already

washed the car so that he can pay for the washing services. He told him that

he was going to wash the car that day when he leaves for his workplace. He

phoned several times that day and even asked him where he was. Upon

hearing that accused number 1 was at his place in town, he undertook to visit

him. On that day accused number 1 had to fetch his cousin Solly Chauke

from Johannesburg at the Engen garage. He was visiting him. Whilst he was

at his place, Lekgotla arrived accompanied by a dreadlocked man,

Maphunye Nkwe and another man whom they claimed was from Lesotho.

They arrived in Lekgotla’s van. Nkwe told him that they had come to work on

the car as previously promised. He mentioned that he needed to work on that

car so that he can immunize it against accidents.

389. The five of them, that is accused number 1, his cousin, Lekgotla, Nkwe and

the man from Lesotho got into the Jetta and drove to a veld. On arrival Nkwe

worked on the motor vehicle and sprinkled some water on it. He also took

some small tekkie and tied it to the inside mirror of the motor vehicle and

said that it would protect the vehicle. From there they returned to his place

and promised to return the following day to work on the Audi. Solly Chauke is

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also a traditional healer. Whilst there, Solly Chauke was having a

conversation with Lekgotla. In the late afternoon of 19 August 2016 accused

number 1 communicated with Lekgotla through WhatsApp. He enquired from

Lekgotla when they will come to work on the Audi as promised. Lekgotla

indicated that the man from Lesotho had already left and they would come

on the day of his return in Kuruman.

390. That morning when accused number 1 was on his way to the Pick ‘n Pay, he

passed a place where he normally washed his cars. One of the people

washing cars, called at him and signaled that he must wash his car. He

reluctantly left his car there to be washed, but only on the outside. He locked

the doors and left. On his return he had not finished and had to wait for him

for some time to finish polishing the tyres. He paid him R20.00 for his

services. He then returned to his workplace in Koffiefontein. Lekgotla

communicated with him. He told him that there was a person who was killed

at Mothibistad. He indicated that the police had come to demand a firearm

from him. Accused number 1 asked him whether he had a firearm and

whether he had handed it to the police. Lekgotla mentioned that he actually

lent his firearm to the person who had shot that person. Accused number 1

also heard from his brothers that a person had been killed next to the garage

at Mothibistad.

391. The Saturday when he was to return to Kuruman, Lekgotla spoke to him on

the phone. He told Lekgotla that he must return to Kuruman and he wants

him to prepare the R1, 000.00 so that he can have it on his return. His

intention was to use that R1, 000.00 to buy alcohol for himself. Before he left

Koffiefontein for Kuruman, he took his car for a wash.

392. Accused number 1 mentioned that he had some quarrels with his girlfriend.

She was supposed to go to work to complete some leave forms and was

also to go to the Eastern Cape on maternity leave. That night accused

number 1 slept in Mothibistad. Accused number 1 testified that the other day

he was on his way to Blackrock. He received several calls from a person who

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wanted to know where he was. At some stage his brother called him and

reported that there were people at his house who wanted to buy a car from

him. He was surprised because he was not selling a car. Later he received a

call from an unknown person who told him that there are lots of police

together with a police forensic vehicle next to his premises. He later received

another call from a person and he told this person that he knew there were

police at his place and they are looking for him. They must wait for him, he

will come, but it will take some time before he arrives.

393. He went to his place and as he parked, Colonel Louwrens and another short

white policeman approached him. They started interrogating him about an

incident where people were killed. He was surprised and shocked to hear

that. He was asked whether he had been to Postmasburg on 17 August

2016. He thought for a while and agreed that he went to Daniëlskuil and

Postmasburg on that day. He was asked how many motor vehicles he had

and he mentioned them. Colonel Louwrens asked him why he was not

mentioning the Jetta. He explained that the Jetta belonged to his girlfriend

and is not his. They asked him where the Jetta was. He replied that it could

either be in the Eastern Cape or at his premises or at his girlfriend’s

workplace. Colonel Louwrens told him that the Jetta was used in the crime of

killing people in Postmasburg. He was surprised to hear that and told them

that he knew nothing about that. He was further told that they knew that on

18 August he washed the Jetta. He said he did not do anything like that.

394. They took him along and drove away. They arrived at his girlfriend’s place

and entered the house. Colonel Louwrens asked him for a firearm, and he

told him that he did not have a firearm. They searched the wardrobe but

came out empty handed. As he was arrested they opened the Jetta and

searched it after which Colonel Louwrens told him that he is seizing the

Jetta. They asked him where his cell phone was. He indicated that it was in

the car. The short white policeman took the cell phone from the car. Accused

number 1 told him that there was another cell phone and he returned with a

second cell phone. When asked about Postmasburg, he indicated that there

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is a place where two coloured men got into the car. He thought they are

coloured because they were speaking Afrikaans. He did not even see them

and he cannot identify them if they were to appear before him today. Colonel

Louwrens told him that he knows that he was going to be paid R6, 000.00.

Accused number 1 disputed that and said that he only knows about the R2,

000.00. When the Jetta was seized, his girlfriend was present. She was

highly pregnant. She was shocked to hear what the police said and even

asked accused number 1 whether what they say happened is the truth. He

denied any knowledge thereof. They drove to Kuruman police station. Along

the way Colonel Louwrens asked him where the place was where he washed

the Jetta. He took them there. Colonel Louwrens searched around there for

the person who had washed the vehicle and they could not find him. They

proceeded to the Kuruman police station.

395. He was referred to page 219 of Exhibit ‘R’ and confirmed that his cell phone

number was 081 836 3576. He was referred to a transaction at 21:15:51 on

17 August 2016 where a call appearing to have been connected with 083

856 2686 being a cell phone number of accused number 4, and the call

duration was 4 seconds. He indicated that that was not a call that he made,

but that at that time his phone was with Lekgotla who had kept it when he

had borrowed it to make a call. On the same page 219 of Exhibit ‘R’, the

activity at 21:56:22 where it is reflected cell phone number 072 449 4322

belonging to Matthews Legodi, accused number 5, had called his number

and the call lasted for 69 seconds. Accused number 1 replied that even at

that time he did not have the phone with him. It was still with Lekgotla and

that he must have made that call. The area of reception of his phone for this

call was Magojaneng. He replied that at that time he was not at Magojaneng

but at Mothibistad and that Magojaneng is not far from Mothibistad. Further,

at 12:27:08 there were activities indicated under Seodin, Mothibistad,

Kuruman coverage arrears. He disputed ever making those calls as he did

not have the phone in his possession. He was asked about the call made on

18 August at 8:33:48. He replied that the phone was still with Lekgotla

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because he only returned it between 10 and 11 and therefore he could not

have made that call either.

396. He mentioned that during the interrogation Colonel Louwrens told him that a

used cartridge was found in the car. He actually told Colonel Louwrens that

there was no used cartridge, but that it was live ammunition which Lekgotla

claimed belonged to him. He denied that he ever saw any blood on the inside

of the Jetta and that he never told Colonel Louwrens, when he mentioned the

blood, that it was on the inside of the Jetta. Even on 19 August 2016 he

never discussed anything concerning blood in the Jetta with Lekgotla. He

further mentioned that he did not know any of his co-accused before his

arrest. He only met them several days after his arrest at the detention centre

and when they appeared in court.

397. Mr Shamalane Solly Chauke was called as a defence witness on behalf of

accused number 1. He testified that on 18 August 2016 he had visited

Kuruman. He was supposed to meet his brother. He did not know where the

brother lived and arranged with accused number 1 to pick him up and take

him to his brother. Accused number 1 did as requested and they went to

accused number 1’s girlfriend’s place in Kuruman. Whilst there he was given

something to eat. Sometime later, at around 6 or 7pm a white van arrived

with two occupants. It was a person with dreadlocks and one who introduced

himself as Ditiro. Ditiro told him that he is a traditional healer. He promised to

bring patients to Chauke because he is also a traditional healer. He told him

that even the white van belonged to him. After some time, Ditiro, the man

with the dreadlocks, Hasane and Chauke got into a motor vehicle. He cannot

remember who the driver was, but they drove on the road leading to Kathu

village.

398. They stopped at a veld and the person with the dreadlocks started sprinkling

some water on the motor vehicle. Ditiro indicated to Chauke that this man

was performing some rituals on the vehicle and that they were supposed to

perform rituals on the other vehicle. He did not know or understand which

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vehicle Ditiro was referring to. After performing the rituals, they all got back

into the vehicle and drove back to accused number 1’s girlfriend’s place.

From there the two men left with the white van. To date hereof, Ditiro has not

brought the said clients/patients that he had promised him. He mentioned

that accused number 1 must have been aware at that time that he was also a

traditional healer. The reason for saying so, is because for one to become a

traditional healer, you must leave the place for some time to go through

some processes that would qualify him to be a traditional healer. However,

accused number 1 never asked him to perform or assist him with a problem

with his expertise as a traditional healer. On that day, 18 August 2016, he

cannot say accused number 1 appeared upset because whenever the two of

them are together, they are always happy. In response to a question by Mr

Cloete on behalf of the State why does he specifically remember the day of

18 August 2016, he replied that the significance of that day is that he was

promised some clients/patients by Ditiro, which never happened. After the

testimony of the witness, Chauke, accused number 1 closed his case.

399. Frank Tsame Baxane, accused number 2 testified that he is 35 years old and

passed standard Eight at school. He resides at 4022 New Stand, Daniëlskuil.

He was arrested on 5 October 2016. On the morning of 17 August 2016 he

woke up and between 9 and 10 went to a lounge where drinks including

alcohol was sold. He craved to drink as he had a hangover (babalaas). On

arrival he bought himself one Redds cider. As he was busy drinking the

Redds, one Dube arrived. Dube asked him where the other gents were. He

replied that they were at Boitumelo Kaleche’s place. Boitumelo is also known

as Douw and is his friend. Dube mentioned that he was craving to smoke

oka pipe. Accused number 2 also, was craving to smoke the oka pipe and he

suggested that they go to Boitumelo where they would definitely find the

pipe. Between 11:00 and 12:00 they arrived at Boitumelo’s place. They found

accused number 3, Boitumelo, Dan, Golo, Mamikie Thandiso Plaatje present

and they joined them for the entire day. Mamikie was busy cleaning a

sheep’s head (afval). Basil arrived after 5pm. There was loud music playing

and they were drinking alcohol and smoking the oka pipe. That included

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accused number 3. At that time accused number 2 was using a Nokia Aisha

phone with the number 082 761 0085. This phone was in his possession. At

that time accused number 3 was his friend already. He knew accused

number 4 through accused number 3. He only knew accused number 5 as

someone known as Juluka in the community.

400. Before the arrival of Basil, Nation Kaleche, who is Boitumelo’s wife, arrived

with the children. She found them sitting inside the house. She enquired why

accused number 3 was there as he is not used to coming to her place.

Boitumelo told her to leave him alone because he is his friend. Boitumelo

suggested that they sit outside. Basil arrived. Golo was busy chopping wood

to prepare a fire. Accused number 3 and Basil stood to one side having a

conversation. Accused number 3 suggested to Basil that he should buy them

some liquor. Accused number 2 joined in and also requested Basil to buy

some liquor. Accused number 2 got into Basil’s motor vehicle which was a

black Corsa and they drove to 21 Jump Street to buy the alcohol. Accused

number 3 followed them in the Avanza motor vehicle. At 21 Jump Street,

they looked for Lebogang who was running the liquor place. They bought a

case of Castle Lite for accused number 3, a bottle of Smirnoff 1818 for

accused number 2 and Basil bought himself a can of Castle Milk Stout. They

placed the liquor in the Avanza and he joined Basil in the Corsa and they

drove back to Boitumelo’s residence. When they arrived, Boitumelo was

sleeping. Dice arrived. He also offered to buy them alcohol. Accused number

3 offered him the vehicle to use for transporting the liquor. Accused number

3 handed the keys to Golo. The two left. After some time accused number 3

asked why they were taking so long. Accused number 2 offered his phone

and he dialled Golo and he indicated that Juluka had arrived at that place

and had taken the car keys. The phone was then handed to accused number

3 who spoke to accused number 5 and after that he told them that he was

going to accused number 5.

401. After accused number 3 had left, Dice and Golo arrived on foot. Soon

thereafter accused number 3 returned with the Avanza. Thereafter, accused

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number 5 arrived in a blue Golf motor vehicle. He sent a message with

accused number 3 to tell accused number 2 that he had long been looking

for accused number 2 who had been pestering him for employment. Accused

number 5 told accused number 2 to assist in getting at least 10 unemployed

people. He thereafter told accused number 3 to see to it that accused

number 2 goes and looks for people for him. Accused number 2 denied that

he left Boitumelo’s place to go to his house or even to go and look for

something to eat. After speaking to accused number 5, accused number 2

left for his house to go and switch on the lights. It was past 7 to 8 pm.

402. Accused number 2 corrected his evidence by stating that during the day

accused number 3 left Boitumelo’s place for about 20 to 30 minutes and

thereafter returned. It was at that time that Basil arrived. He further corrected

that he also at some stage went to his place to switch on the lights and also

prepared something for himself to eat. After eating, because it was cold, he

then put on more clothes. He put on a jacket that is used at the mines which

had reflectors and was orange in colour. From there he returned to

Boitumelo’s place. On arrival there, he found Boitumelo sitting around the

fire. He left Boitumelo’s place after accused number 5 had spoken to him

between 7 to 8 pm. He hiked a lift with accused number 3 who transported

him up to his house. He unlocked his house and then started calling out for

his neighbour. He explained to him that accused number 5 was looking for

people to attend training which might lead to an opportunity for employment.

His neighbour, Mchuja, also agreed to attend the training. Mchuja’s full

names are Lopang Lekwene.

403. The following morning, 18 August 2016, at 7:30 am, he left his house. He

went via a certain Valdesh. On his way to Valdesh’s place, he called accused

number 5 and reported to him that he had already got Lopang Lekwene for

the training. After speaking to accused number 5 he went to Valdesh’s

house. As he was busy knocking at the door, his phone rang and he realised

that it was accused number 5 who was calling him. He requested accused

number 5 to give him a minute so that he could speak to Valdesh

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Mosimanyana and recruit him for the training. After recruiting Valdesh he

remembered a person called Thabang who was staying some distance

away. On his way to Thabang’s place accused number 5 called again and

asked him how many people he had found. Accused number 5 called him

intermittently. He then reached Thabang’s place and recruited him. Whilst

with Thabang, accused number 5 phoned again. He can’t remember how

many times he phoned him, but according to him, it was many times. He can

only think of calling accused number 5 once or twice, but most of the time, it

was accused number 5 who was phoning him. He went to look for other

people and could not find them and informed accused number 5 that they are

only four in number. Accused number 5 said it is fine. He said he had a list

and would go and look for other people. Accused number 5 further told him

to make sure that he attends the training the following morning and that he

must not return to Boitumelo’s place, but that he must go to bed immediately.

He went home and he slept.73

404. He woke up early the following morning and readied himself to go to the

training. Before he left his house, he called Mchuja to tell him that he must

finish so that they could go. As he was busy locking his house to leave, at

around 7:00 am, a white motor vehicle stopped in front of his house. He saw

a white person in the motor vehicle. The white male got out and approached

him. He realised that this person was a police officer, Detective Coetzer. He

told him that he was sent by Colonel Louwrens from Kimberley to borrow his

phone. He asked him why and he said he should not worry he would return

it. He handed his phone over to Detective Coetzer. It was still on and he left

with the phone. From there he went to Valdesh and the two of them went to

the training in town at the Red Club belonging to the mine.

405. Accused number 2 mentioned that on the previous day, 17 August 2016,

after having looked for Valdesh and Thabang, he went to his house at past

10 to 11 pm. He was referred to page 104 of Exhibit ‘R’ to the cell phone

number which belongs to accused number 5. It was stated that he had made

73 Accused number 2 had his evidence mixed up between the 17th and the 18th.

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and received calls to and from this number. These calls were made between

19:58 and 21:42:38. He made the calls whilst he was in Daniëlskuil. He was

referred to the time 19:30:13 whereat he had an SMS message and the

tower which had serviced him was Postmasburg.

406. Accused number 2 denied that on 17 August 2016 he travelled from

Daniëlskuil to Postmasburg where these offences were committed and that

he never went to Groenwater.

407. When asked whether there was anything he wanted to add to his evidence,

he mentioned that on 29 September 2016 Colonel Louwrens and Warrant

Officer Henk van der Merwe approached him at his place and told him that

accused number 3 had advised them that he possessed firearms and they

were there to collect same. He denied knowing anything about any firearms.

He said they must tell accused number 3 that he must come and dig out the

firearms he was referring to.

408. He further mentioned that on 18 August 2016 at midnight he heard people

knocking and claiming to be police officers. When he opened the door he

found Colonel Louwrens and Warrant Officer Henk van der Merwe and TRT

police officials. They asked where accused number 3 was and he told them

that he did not know as he had not met him. They told him that he should

know his whereabouts and he denied any knowledge as he was resting with

his girlfriend. They entered the house and searched it. They asked whether

he had accused number 3’s contact numbers and where they could find him.

He scrolled through his cell phone and dialled accused number 3’s numbers.

Colonel Louwrens told him to speak to accused number 3 and ask him about

his whereabouts. He told them that the phone was off and he could not

speak to him. They left his place and after they left he phoned accused

number 4 to report that the police were there harassing him, looking for

accused number 3. He asked him whether he knew where accused number

3 was and accused number 4, said he did not know.

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409. He was referred to page 106 of exhibit ‘R’ and showed that on 19 August

2016 at 2:37:24 there is a number under “other party” which is 071 850 9434

and he confirmed that that it is accused number 3’s number that he had

phoned. The number below that is that of accused number 4 which he had

phoned that evening.

410. Mr Zonizelo Richard Magawu, accused number 3 testified that he knew both

the deceased Nouse and Baaitjie. He attended school with Nouse. He knew

Mr Baaitjie as one of his seniors in Daniëlskuil and was also a member of the

ANC before 2011. He also knew him as a mechanic who used to assist him

in repairing his motor vehicle. The last time he called him was with regard to

the fan belt of the Toyota Avanza which was affecting the air conditioner and

making a noise. He also knew Baaitjie as an entrepreneur doing some

projects in the construction business.

411. He further testified that in 2016 he was a candidate for the ANC in Ward 1

and Baaitjie was a candidate in Ward 2. When asked whether he had a cell

phone on 16 August 2016 he replied that he did not have any. The cell

phone that he had got lost on 15 August 2016 in the Toyota Avanza motor

vehicle. Around 5 and 6 August 2016 he was at an ANC event/party after the

elections. He lost a contract phone which was a Samsung Neo Plus, which

he had given to one of the volunteers to keep for him. It was using the

number 071 850 9434. At the time of his arrest on 19 August 2016, he did

not have a cell phone.

412. Accused number 3 confirmed that on 17 August 2016 he was at the cell

phone shop and that he is the person on the video footage from that shop.

He went there to report his lost phone in case someone had wanted to sell it.

That would have made it possible for him to prove that it was his phone by

producing the purchase documents as well as the box for that phone and

would also report it to the police. Whilst he was on his way to that shop

driving an Avanza a certain Larry who was employed at the police station as

an administrator took a lift from him. He dropped him on the street leading to

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the police station and proceeded to the cell phone shop. He parked just in

front of the door of the said shop to minimize chances of someone breaking

into the car and steal the radio. When he locked the passenger door from the

inside, he noticed a cell phone. He thought that it belonged to Larry. He

placed it in his pocket and entered the shop. On his way out of the shop,

someone called him from inside. He noticed that it was Boitumelo who

requested some advice from him on a music system which he wanted to buy.

The phone that was in his pocket rang. He answered it and the person on the

other side of the line was Larry, the owner of the phone. He confirmed with

Larry that he had the phone that he left in his car.

413. In response to the question of what was handed over to him inside the shop

by the shop owner/assistant, he said that it was an SD card. He could not

remember the colour of the SD card. After Boitumelo had purchased the

music system, they placed same in the Avanza. They went to Boitumelo’s

place after having made a stop at the liquor store to buy some alcohol. They

arrived at his place at around past 9:00 to 10:00 am. Whilst there, Larry

phoned again enquiring about his whereabouts. He told him that he was at

Boitumelo’s place and that he would bring the phone to him. Accused

number 3 requested Boitumelo to lend him R100.00 so that he could fill up

the Avanza with petrol. This was in consideration for having assisted him in

transporting the music system to his residence and that would be in addition

to the six pack of beers that he had bought for him. At that time, he also

wanted to go to his place to have something to eat. He left Boitumelo’s place

and went to town where he refilled the Avnza with petrol.

414. From the fuel station he went to the police station where he was required to

present himself and sign a register on daily basis as a condition in a matter

unrelated to this one. It was around 10:17 or 11:17 am. After signing the

register he returned Larry’s phone. He returned to the Kaleche residence. On

his arrival he found the people he left still present together but Mamikie had

joined them and was busy cleaning a sheep’s head (afval). After some time,

accused number 2 arrived with Dube in a silver SUV Hyundai motor vehicle.

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Boitumelo’s wife arrived and accused him of being at her place only because

Boitumelo had received his bonus and that he was there to exploit his

money. This upset accused number 3 and he decided to arrange beers for

himself. He went to negotiate with the son of the owner of the tavern called

“The Lounge” for some beers. It took him 40 minutes to go there. Later Dice

came. He gave the Avanza keys to Golo to go with Dice/Dise to the liquor

store to buy more liquor. He did not make any calls during this time as he

was not in possession of a phone. When Golo was delaying to return, he

became worried. They learnt that accused number 5 had taken the Avanza

keys from Golo.

415. Accused number 2 handed him the phone to speak to accused number 5.

Accused number 3 had said something which he had omitted in his

evidence. On his return from “The Lounge” where he wanted to buy liquor,

he stayed for some time at Kaleche’s place. Dube was not present, but

accused number 2 was. After a while Basil arrived from work as it was his

knock-off time. It was now past 5pm. When he arrived, accused number 3

reminded him of a case of beers which was due to him. Accused number 2

also joined in and wanted an 1818 Smirnoff. Basil and accused number 2 left

in a black Opel Corsa to buy some liquor. Accused number 3 told them that

he would follow them because he wanted to go via his house to drop the

keys. On his return he found the Corsa at 21 Jump Street. They struggled to

get hold of the son of the owner, Lebogang, to assist them. He ultimately

came and they managed to buy a case of Castle Lite beers, 2 Quarts of

Black Label meant for Boitumelo, the 1818 Smirnoff and Milk Stout beers for

Basil. They thereafter drove back to Boitumelo’s house.

416. Golo was present chopping wood for fire. The axe was not sharp and

accused number 3 gave him his axe from the motor vehicle to use. Later

accused number 2 left. Boitumelo, who was drunk by then, took a nap.

417. Reverting back to the incident where Golo was given the Avanza to go and

buy liquor and when accused number 5 had taken the keys of the Avanza,

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accused number 3 went to 21 Jump Street. He met accused number 5 who

complained to him that he had borrowed him the vehicle to use and was

supposed to have returned it on 16 August 2016, but that he was using it to

transport liquor instead. Accused number 3 apologised and accused number

5 handed the keys back to him. He asked him where accused number 2 was.

He replied that he was also at Boitumelo Kaleche’s place. He told him that he

must tell accused number 2 that he is looking for him as they must be at a

training the following day. Accused number 3 agreed to tell accused number

2 and he left. On arrival at Boitumelo’s place, he parked the Avanza and

entered the premises. He saw a blue Golf approaching them. This car parked

next to a house away from Boitumelo’s house as there was another motor

vehicle, to wit a Ford Figo parked there. He heard a voice calling him and

noticed that it was accused number 5. He walked towards the blue Golf and

accused number 5 told him that he must make sure that he takes accused

number 2 home because he gave him a task to do. Accused number 3

immediately went to accused number 2 and told him that his party was over

as accused number 5 had said that he has something to do the following day

and must go home immediately. Accused number 2 agreed to leave without

any hassle, but did not do so before taking a last sip of alcohol. Before he left

with accused number 2, Boitumelo woke up and came out dancing wearing

only red underpants and all who were present saw the funny side of it and

laughed.

418. Accused number 3 took accused number 2 home with the Avanza. Along the

way, accused number 3 decided to visit his girlfriend. He spent some time

with his girlfriend and only arrived home past 10pm. He mentioned that he

left Boitumelo’s house between 7 and 8 pm. It could also have been between

7 and 9 pm. When dropping accused number 2 off at his place, he told him

that there is something that was bothering him being that he had lost his

phone on the 5th and that if he was to report it the phone was going to be

blocked and that he would have to do a SIM swop which would cost him

R250. He was also still paying R599 as per his contract and would also be

expected to buy a new handset. He then gave accused number 2 his

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number, 071 850 9434 and requested him to dial it. Accused number 2

complied and he left.

419. He was asked about the evidence of Dustin Moses that on 17 August 2016

at around 5 pm the accused drove past their house in an Avanza at high

speed. He denied ever being on that street. He did mention, however, that

there is a huge speed hump on the same street next to Baaitjie’s house and

that that would make it impossible to drive at an excessive speed in an

Avanza which is not even a sports car. Furthermore, Baaitjie’s street is a

“square street” and there are other streets flowing onto it. His friend and

colleague in the ANC, Paulus Mgcera, erstwhile accused number 6, lives on

one of those streets. Rodney Lessing, who is a ward councillor also lives in

that street. It happens therefore that he has to go to that area. He also

assists people who have challenges with the burial of their family members

and he has to go there and meet the councillor, including deceased Baaitjie.

420. Regarding the evidence by Mrs Baaitjie that a tender in the amount of

R800,000.00 had been offered to her husband and that he would have

received 10 % thereof, accused number 3 mentioned that the deceased

Baaitjie, as a councillor, should have known or familiarised himself with the

provisions of the Municipal Structures Act. Furthermore, if indeed he was

expected to pay 10 % of the R800, 000.00 to get the tender, it means he

attended the proposed meeting carrying an amount of R80, 000.00 being the

10% of the capital amount. Therefore, he suggests, this case has not been

properly investigated, the police should have looked for the R80,000.00. Mr

Buthelezi referred him to the evidence of Colonel Louwrens that the suspect

number was used in the Nokia N70 that belonged to him to send a message

to Baaitjie. He replied that there is no proof before this Court that his number

ending with 133 was ever inserted in the same handset.

421. Accused number 3 questioned how Colonel Louwrens could send a request

without a CCR number to Mrs Du Plessis for call data when at that time Mrs

Du Plessis had already received a letter with a CCR number. He further

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questioned why the number ending with 133 was mentioned in that request

already when it was also stated that it was only used on 17 August 2016 and

without any other days being mentioned.

422. Accused number 3 testified that when he was employed at the Defence

Force he was holding office at the interception centre of which the South

African National Intelligence Association, the National Intelligence of the

Defence Force and the Crime Intelligence of the Police and other security

agencies formed part, in order to supply information regarding e-mails,

SMS’s, calls, phone recordings, etc. He mentioned that on 18 August 2016 it

was highly impossible that at 03:28 Colonel Louwrens or any other officer

could have known in which handset the SIM card with the number ending

114 was inserted. One could not obtain that information by merely opening

Baaitjie’s phone to determine the particular handset in which the number

ending with 114 was used to communicate with Baaitjies’s number. One can

only determine the IMEI number from the handset that had used the SIM

card ending with 114.

423. He further accused Colonel Louwrens of changing numbers and fabricating

information. He referred to page 18 of Exhibit ‘R’ and challenged the

subpoena on that page. His challenge was that it could not have been urgent

if it was not marked with the letters “URGENT”. As regards the fact that

Colonel Louwrens punched the number that was used in the handset that

sent the message/communication to Baaitjie in his own phone and it

reflected ASH, he contended that Colonel Louwrens ought to have known at

that time that the number belonged to him because he had several

communications with him in connection with the matter that he was involved

in at that time. Some of the arrangements related to the bail application that

he wanted to launch.

424. Regarding his photo that Colonel Louwrens had said he downloaded from his

WhatsApp profile, he mentioned that he never posted that photo on

WhatsApp but that he had it as a twin picture on his Facebook account. That

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would have been the only place where Colonel Louwrens could have seen

that photo. Accused number 3 further took issue with the fact that Colonel

Louwrens had lied to him by indicating that Nouse was alive and had made a

statement about him. He demanded that the statement be produced and to

date there is no such a statement, meaning that Col Louwrens is a liar.

425. Regarding the SIM card that Colonel Louwrens had said he had obtained

from the cell phone shop, accused number 3 mentioned that that cannot be

true, because Colonel Louwrens was not even there. What he received at

the shop was an SD card, for free, because they had bought a music system.

The SD card was handed up as exhibit ‘Magawu 2’. He mentioned that Larry

whom he had given a lift to his work and forgot his cell phone in the car, had

passed away. He denied that he made a call to the deceased Baaitjie with

the cell phone number ending in 114 for 181 seconds. He does not dispute

that Lekgotla was phoned by this 114 number, but he was not involved.

426. Accused number 3 mentioned that he did not sleep at his home on 18

August 2016. He went home in the morning at around past 10 am. He was

informed by his mother-in-law, on his arrival, that his life partner had been

arrested by Colonel Louwrens. When he asked why, she mentioned that it

was in connection with murder. He remarked that it was unlawful but the

mother-in-law indicated that the police had said that they will release her

once he handed himself over to them. His niece Vaseka Muriel had arrived in

the meantime and he requested her to take him to the police station. She

accompanied him whilst he drove the motor vehicle to the police station.

Along the way he noticed that a car was following him. It was not unusual for

him to be followed because he had been placed under surveillance and his

movements were monitored. In fact, at some stage he saw a car parked next

to his house in the street and he saw the other one parked next to accused

number 4’s house. He communicated with accused number 4 telephonically

and both agreed to switch their lights on and went outside. Those cars then

drove away.

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427. On the way to the police station, he had made up his mind that he was not

going to be arrested military style on the street, but decided to drive with

speed to make it clear that he was heading in the direction of the police

station. On entering the police station he met Warrant Officer Coetzer. He

enquired from him where his wife or life partner was. Warrant Officer Coetzer

replied that Colonel Louwrens had arrested her. He asked why and he said

that it was for housebreaking and theft. He asked whose house had been

broken into and was told that Colonel Louwrens would be the one to explain

the situation to him. He was taken into an office and TRT police officers said

that he must be taken to the detective offices on the instruction of Colonel

Louwrens.

428. Accused number 3 referred to several newspaper clippings in which he said

they had wrong information about him and the reasons for his arrest, and

according to him this information was supplied by Colonel Louwrens. He

worked at the ANC Parliamentary Constituency Office in Daniëlskuil.

According to him the ANC will not kill someone for a councillor position. The

ANC was not going to gain anything out of the death of Baaitjie. Personally,

he stood to gain nothing from his death. He mentioned that the councillors

are not involved in tenders in terms of the relevant legislation. It is a matter

for the CFO. He mentioned that they were wrongly accused of killing Baaitjie.

That they even included accused number 5, an honest person who has

acquired all he had through hard work. His prosecution is in fact at the

instance of the DA given the statements that were made by Mr Mmusi

Maimane, the then leader of the DA and the placards that were carried by

DA members when he appeared in court, in which they demanded that he

should not be released on bail. In response to a question whether Colonel

Louwrens had explained his rights at the time of his arrest, he agreed that

they were explained to him and that he did not want a lawyer as he saw no

necessity for one. In his statement he told Colonel Louwrens that he did not

want to make a statement but that he was prepared to answer any question

put to him. He told Colonel Louwrens that he slept at a hotel. What is

attributed to accused number 5 by Colonel Louwrens when he was asked

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about his whereabouts in the early hours of the morning does not make

sense. He could not have said he did not know where he was when he, as a

matter of fact, knew where he was. He denied ever meeting Tiro Lekgotla,

whether at Daniëlskuil or at Daniëlskuil on the way to Postmasburg. He

denied ever communicating with Tiro Lekgotla. He questioned why the State

would use the services of the SBV employee, Mr Möller, when the State has

sufficient resources and manpower at its disposal.

429. Accused number 3 questioned why it was not Mr Schoeman who had

obtained a statement from Lekgotla as his client and then hand it over to

Colonel Louwrens. It should not have been Colonel Louwrens who obtained

that statement, he contended. That, according to him, means that Mr

Schoeman was a mere rubberstamp. He further questioned why Lekgotla

was not taken to a Magistrate for a confession statement. Since Lekgotla is a

self-confessed criminal, he should have been charged with them for these

offences. According to information he had received, Lekgotla has been

treated differently and was issued with a firearm whilst he was already a

witness. According to him, the police can check the records and prove that

Lekgotla has been issued with a firearm licence whilst under the witness

protection programme.

430. He explained why in his section 220 admissions he had not admitted that the

blood that was in the boot of the Jetta was that of the deceased Baaitjie. He

mentioned that there had been results for the first samples taken during the

initial investigation and nothing positive was found. It was only on the second

occasion when samples were taken that it had positively connected to the

deceased Baaitjie. He maintained that it meant that the case was not

properly investigated. He testified that on 18 August 2016 he picked up

accused number 4 to go to the Magistrate’s court so that they could apply for

the relaxation of their bail conditions in the unrelated matter. In those

proceedings, they are represented by Mrs Lofty-Eaton. On their way to court,

accused number 4 indicated to him that there was someone calling him on

his phone with accused number 3’s number. He then replied that he does not

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know who that person is; that it means that someone has his phone number.

During the day they met with their attorney, Mrs Lofty-Eaton, who told them

that she had heard that a councillor had been shot and killed and asked

whether it was accused number 3 who committed the crime. Accused

number 3 said he merely laughed and asked her which councillor.

431. He was referred to a statement made by accused number 5 to Colonel

Louwrens in which he had indicated that he had known that accused number

3 had cell phone numbers 081 801 1667 and 082 667 6133 and that at

paragraph 3 of the said affidavit accused number 5 mentions that he phoned

number 082 667 6133 on 17 August 2016 using his cell phone number

082 617 1424 and that accused number 3 answered that call. He replied that

that cannot be the case as he did not have a phone on the 17th. It was further

put to him by Mr Buthelezi that the State alleges that he had a SIM card

ending with 133 which was inserted into accused number 2’s phone on 17

August 2016 and that he had used it on 18 August 2016. He denied that the

SIM card was in his possession and that accused number 2 had responded

to the question.

432. He was further referred to the evidence of Pamela Plaatje that on the said

date accused numbers 2, 3 and 4 were inside the Avanza. He denied that he

had ever met accused number 4 on 17 August 2016. It was further put to him

that the State alleges that at 19:56:42 accused number 2 phoned him whilst

the latter was at Groenwater and accused number 3 was in Daniëlskuil. He

disputed calling him from that place. The call was made when they were

together in Daniëlskuil and that the call diverted to voicemail. It was made on

his instruction to trace where his phone was. He denied that they had

connived to or had called each other to plan the killing of the deceased

Baaitjie.

433. Mr Jacobus Koper testified as a witness for accused number 3. He was

residing with the deceased Baaitjie in ward 2 and were friends. On 17 August

2016 he was with him at his house between 11:00 and 12:00 during the day.

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The deceased received two calls in his presence. The first call he picked it

up and dropped it without answering it. The second one he answered and

engaged in a conversation and Koper could not hear what they were talking

about. After the call he mentioned that those people had been looking for him

for the whole week in connection with work. He did not tell him who those

people were and where the work was to be done. He only said he must go to

Postmasburg for a meeting.

434. Mr Cloete referred the witness to a written statement he made to the police

on 18 August 2016 which was provided to the defence. He referred to the

fact that Koper indicated that two of the deceased’s sons were present; that

after the first call the deceased mentioned that it was someone he did paving

work with in Danielskuil; that after the second call he reported that the person

he spoke to wanted to see him for a meeting in Postmasburg at 17:00 that

afternoon. Mr Koper confirmed that it is how the events unfolded.

435. Denver Denzil Baaitjie was called to testify as a witness for accused number

3. He is one of the twins of the deceased Baaitjie. He confirmed that he was

with his father in the house on 17 August 2016. He was watching TV. A

phone rang, the deceased picked it up and the caller dropped it. It rang the

second time and he picked it up. He spoke for few seconds with the caller.

The deceased did not tell him what the person was talking about. He was

referred to his written statement wherein he stated that the deceased said

that the man had been looking for him by Mr Buthelezi. Mr Buthelezi, visibly

surprised, to say the least, put to him that he is differing from what he told

him in consultation and submitted to him that he is not a credible and reliable

witness. He was requested to refrain from cross examining his witness or put

leading questions to him but rather follow the prescribed procedure in such

circumstances.

436. Ms Easthorpe on behalf of accused number 5 cross-examined the witness

about the statement that he made to the police. In particular, she read to him

paragraph 3 where it is stated that his father mentioned that the person he

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spoke to on the phone told him that he got his cell phone numbers from a

certain Tony of Mafikeng who used to do paving work with his father. The

witness conceded. He was further referred to a paragraph were he stated

that his father said the paving work will be R800 000.00 and he confirmed.

437. Mr Cloete also cross-examined the witness. He mentioned that his father

parked the vehicle on the premises on 17 August 2016 before he said he

was going to Postmasburg and that he left with Mr Nouse. He confirmed that

her mother phoned her father several times to the number starting with 081.

There was an issue about the fact that he also made a second statement on

11 July 2019. Nothing of relevance really turns on this aspect and need not

be referred to any further.

438. Accused number 4, Thompson Mphondomisa, is 44 years old. His highest

standard of education is Grade 10. He was arrested on 6 September 2016

and that is the day upon which he met accused number 1 for the first time at

the detective offices. He knows accused number 2, 3 and 5 whom he

regards as his friends. Because they are friends, there is nothing wrong with

them communicating telephonically from time to time. During 2016 he was

using the number 083 856 2686. He knows Lekgotla as they used to work

together. He does not dispute the telephonic contacts between him and

Lekgotla. They were however for a different reason than what Lekgotla had

testified about.

439. He was working with Lekgotla at MSD Mining. He left MSD Mining and

started working at John Riggs. Having changed jobs, there was a time when

he did not meet with Lekgotla. He was once suspended from work due to a

case.

440. One day Lekgotla phoned him and said to him that it has been a long time

since he had seen him at the workplace. He reported to Lekgotla that he had

been suspended from work and was involved in a CCMA matter with the

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employer. According to him this was towards the end of July 2016, beginning

of August 2016.

441. Somewhere around August 2016, Lekgotla, accompanied by another person,

walked passed accused number 4’s mother’s house. Accused number 4 was

outside. Lekgotla told him that he had been looking for him and that he could

not reach him on the telephone numbers he knew of accused number 4.

Accused number 4 informed him that he was no longer using those phone

numbers and gave him new numbers beginning with 083. Lekgotla also told

him that he is also having problems at work and is likely to be suspended.

Whilst there, Lekgotla took him aside and said there is something that he

wants to show him. They parted company on that day.

442. On or about the 10th or 11th of August, accused number 4 was watching

movies at home with his cousin, Tebogo. Lekgotla arrived. Lekgotla showed

him a stone (a diamond). He asked accused number 4 whether he could sell

it for him. Accused number 4 told him that he knew of someone by the name

of Lucky who is a Nigerian dealing in illicit diamonds. He told Lekgotla that he

could sell it for him and that he would not knock him, meaning not rob him.

He asked Lekgotla what he wanted for it, and Lekgotla said he wanted R10,

000.00. He promised to phone Lekgotla on the 11th after having sold the

stone. Lekgotla then left.

443. Accused number 4 went to Lucky to see whether Lucky would be willing to

buy the stone for R10, 000.00. Lucky had R5, 000.00 only, which he gave to

accused number 4, and undertook to pay the other R5, 000.00 the following

day. The next day accused number 4 went to Lucky to demand the balance

of R5, 000.00. He was informed that Lucky had moved out of that residence.

The same day Lekgotla phoned him and asked him about the money. He

replied that he had not yet sold the stone. The next day, 12 August 2016,

Lekgotla phoned again demanding either the money or the stone to be

returned to him. He told Lekgotla that he did not have the money but that he

was prepared to give the stone back to him. Lekgotla came and he deceived

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him by giving him a piece of glass instead of the original stone. Lekgotla left

but later phoned him and told him that what he did was not right as he had

given him a piece of glass instead of the original diamond. He assured

Lekgotla that it was not glass but a real diamond. He said that if he does not

believe it to be a diamond, he will give him his money. The conversation

ended on that note.

444. Around 16 or 17 August Lekgotla called again demanding his money as a

matter of urgency. The reason for the urgency was that he wanted to take his

car for a service as he had an upcoming trip to Pretoria. They argued and

accused number 4 promised to give Lekgotla his money but could not do so

at that time. Lekgotla mentioned that if he does not pay him, he will do

something to him that he will regret for the rest of his life and he will cry on

his hands. The conversation ended.

445. The following day, on 17 August 2016, Lekgotla called him again demanding

his money. He called several times during the whole day demanding same

and in return accused number 4 kept promising to give him the money. Right

from the beginning, the reason why accused number 4 agreed to sell the

diamond on behalf of Lekgotla, was because he wanted to “knock” him.

Knocking was also referred to as breaking his head, which is understood to

mean rob him whilst pretending to be honest.

446. He further testified that he exchanged several telephone calls with Lekgotla

in that period and at times he used public telephones to phone Lekgotla

because he was not staying far from a public telephone booth. He would do

so because his phone’s battery would be flat due to him playing music on his

cell phone. In one of these days which could have been the 16th when they

were arguing over the money, he told Lekgotla that he could go and lay

criminal charges against him and that his case will not be accepted by the

police because it is an unlawful transaction.

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447. He denied being involved in the killing of Mr Baaitjie. What he remembers is

that on 17 August 2016 he went to a “lounge” in Sloja called Moeng Bar

Lounge between 5 and 6 in the afternoon. He consumed alcohol for the

whole time he was there until he left at around 11 or 12 midnight. At some

point, whilst there, he sent his phone home to be charged. Accused number

2 phoned him while he was there and invited him to join them at Boitumelo

Kaleche’s residence. He refused to go as he was not on good terms with

some of the people in their company. Around past 6 to 7pm his phone’s

battery ran flat.

448. On a question why Lekgotla would falsely implicate him in the commission of

these serious offences, he said that Lekgotla was mad at him for knocking

him with a fake diamond and that they had argued about it. Lekgotla was

demanding his money and accused number 4 had told him to go and lay

criminal charges against him. Lekgotla was very unhappy and heartbroken at

what he told him and that is the reason why he would falsely implicate him in

these crimes.

449. He denied being at Kaleche’s home on 17 August 2016 and that Pamela

Plaatje is lying when she says that he was there at some stage with accused

numbers 3 and 5 with the Avanza motor vehicle. He further mentioned that

Pamela Plaatje had lied when she said that he and Valdesh were at

Kaleche’s place on 24 August 2016. He recalls that on 21 August 2016 he

received a call from Ms Lofty-Eaton, his and accused number 3’s lawyer in

another matter. She asked him where accused number 3 was on 17 August.

He replied that he was at Kaleche’s place. She asked until what time. He

said he did not know. She then requested him to bring the people who were

with accused number 3 to her the following day. It is then that he went to

Kaleche’s place and found Dineo and Pamela Plaatje there. He reported to

them that accused number 3’s attorney has sent him to request them to

come to Postmasburg on 22 August 2016 for them to explain what they knew

about the whereabouts of accused number 3. They agreed and he undertook

to collect them the following day on 22 August 2016. Although he did not

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have transport, he would borrow accused number 5’s motor vehicle. He went

to Kaleche’s place in a Citi Golf belonging to accused number 5. There he

found accused number 5’s taxi. Accused number 2 got out of the taxi and

went into the house. He also spoke to Boitumelo. They refused to go with

him. Accused number 4 arrived and they also did not want to go with him.

450. Accused number 4 was referred to the cell phone records of 19 August 2016

at 02:43 where a call was made between him and accused number 2 and

later with accused number 5 at 02:50. His explanation was that accused

number 2 had phoned him to report that the police were at his place looking

for accused number 3 and asked him whether he knew where accused

number 3 was. He told him that he did not know. Subsequent to that call,

accused number 5 phoned and also asked him about the whereabouts of

accused number 3. He too told him that he did not know where he was but

that he had heard that the police were looking for accused number 3.

451. He was asked about the incident of 3 September 2016 when Lekgotla

testified that he had gone to his place and found him washing accused

number 5’s Wildtrak Ford Ranger. He denied that Lekgotla had been at his

place on that day and he denied that he washed the motor vehicle of

accused number 5. He also denied being the person in the photo marked as

exhibit “WW”. In the photo is a white van with Wildtrak written on it and a

male person with his hands with something like a cloth hanging on it.

452. Regarding Exhibit “UUA” he mentioned that although the cell phone number

written on the paper is his, he is not the one who wrote it down. Asked where

Lekgotla would get those numbers from, he replied that on 23 August 2016

he accompanied accused number 5 to Kuruman where he was going to buy

some parts for his motor vehicle. Whilst in the shop, he remembered that

Lekgotla lived in Kuruman. He requested accused number 5 to borrow him

R1, 000,00 and he agreed. He phoned Lekgotla and requested to meet him

in Mothibistad. He agreed. He borrowed accused number 5’s vehicle and

went to Mothibistad to look for Lekgotla. He met him and during their

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conversation, he told Lekgotla that he had just bought a new SIM card and

that he must use the new telephone numbers he provided him with, to

contact him. He also showed Lekgotla the papers regarding his CCMA

matter involving his employer. Lekgotla mentioned to him that he was also

involved in a CCMA matter. He told Lekgotla that he will pay him R1 000.00

but would do so through e-wallet. At that time Lekgotla was driving a Corsa

van and accused number 4 was driving accused number 5’s Citi Golf. They

parted company and he went back to Kuruman where he reunited with

accused number 5. He requested accused number 5 to lend him R1 000.00

but that he should pay it over to the number of Lekgotla that he provided to

him. Accused number 5 sent the money through an e-wallet to Lekgotla.

453. He was referred to exhibit ‘R’, page 66, where Colonel Louwrens testified

that on 17 August 2016 at 21:15 there was contact between accused

numbers 1 and accused number 4’s phones numbers and that that call had

been forwarded. His reply was that when he had gone home from the bar

lounge to check on his phone’s battery, on switching the phone on, he saw

that there was a missed call from an unknown number. He did not have

airtime. He returned to the lounge. Whilst outside the lounge, he saw

accused number 5 approaching and he stopped him. They had a chat and he

told accused number 5 that he had received a call from an unknown number

and asked for his phone so that he could dial that number. Accused number

5 complied and he dialled the number. When the call was answered he

asked who the person was and the response was Tiro. He asked Tiro who?

The reply was Lekgotla. Immediately thereafter accused number 4 dropped

the call. That is how it happened that there was contact with those numbers

between him, the unknown number and accused number 5’s phone. He

denied ever phoning Lekgotla from accused number 2’s number.

454. Accused number 5, Mr Matthews Legodu, testified that he is 52 years old,

married, and has two sons aged 25 and 15 years respectively. He passed

matric and thereafter obtained some diplomas in construction engineering,

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labour law and business management. Before his arrest he was self-

employed in general construction, transport and farming. He is a member of

the African National Congress (ANC) and a member of the Regional

Executive Committee (REC).

455. He testified about the various tenders that he had secured from the Idwala

Mines, Daniëlskuil Municipality, Karoo Municipality and Sutherland. He made

mention of various amounts, some in the millions, which he would get from

these tenders. The mines also contracted him to transport people and he

would receive money in exchange for these services. He testified about the

procedures one needs to follow to secure jobs and tenders for work issued

by government departments, mines and local government institutions. The

purpose of his evidence was to place before Court the fact that in all his

years of doing business, he dealt mostly with the private sector. He

mentioned that everyone in Daniëlskuil knows that his work is dependent on

the private sector. Municipalities do not have big capital work for them and

can therefore not rely on municipal work. He further mentioned that when he

was arrested it had been two years since he last had done any municipal

work. The only contract that he had at that time was with the Sutherland

Municipality. That municipality is run by the Democratic Alliance, but it

notwithstanding, awarded him a project valued at R5 million.

456. Accused number 5 testified that he did not know accused number 1, Mr

Hasane and only met him for the first time at the detective offices after his

arrest on 6 September 2016. Accused Number 2 is well-known to him as he

grew up in front of him and they had played football together. He also saw

him at some of the ANC meetings. He cannot say whether he was a member

or not. He knows accused number 3 as a member of the ANC and he was

also working at the Constituency Office. He also knows accused number 4

as they reside in the same township and he had grown up in front of him. He

regarded him as a very handy person who was good at washing motor

vehicles. He often gave him his motor vehicles to wash particularly the van

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and the Mercedes Benz. He further made use of him in other instances

where he required his assistance, which mainly related to transport.

457. He testified that because the four of them knew each other, there is nothing

strange with them being in contact with each other. They often phoned each

other.

458. Accused number 5 testified that on 17 August 2016 he woke up to go to

work. He realised that his son had parked his motor vehicle behind his. Not

willing to reverse his son’s car to get it out of the way, he decided to take his

son’s vehicle to get to work. Later that afternoon, having returned from work,

one of his supervisors at Idwala Mine, to wit Vicky Olyn, told him that the

people at the mine wanted him to find ten people who would be sent for

training the following day. The purpose was to have reserve employees he

could utilise in cases of breakdowns or overtime. Accused number 5 saw this

as an opportunity not to be missed and he decided to walk around the

location to look for people to recruit for such training. He thought of going to

places such as bottle stores and taverns where he is likely to meet

unemployed persons. He did not see anyone as he walked past the bottle

store known as Backstage. He then walked towards 21 Jump Street. There

he saw his Avanza parked. He noticed two young men approaching the

Avanza. He confronted them, asking them who brought the vehicle there.

They told him that they were using the vehicle. He asked them whether

accused number 3 gave them the keys. They confirmed that indeed accused

number 3 had given them the keys. He took the keys from them complaining

that he will not allow his motor vehicle to be used to transport liquor. The two

men left.

459. After a while, accused number 3 arrived and he demanded to know what

accused number 3 was doing with his vehicle. Accused number 3 apologised

for what he had done. He handed the keys back to accused number 3 who

boarded the motor vehicle and drove away.

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460. Accused number 5 proceeded with his walk to look for people to recruit. A

Golf approached with two occupants, being his son, who was driving and his

younger brother. He mentioned that his younger brother has since passed

away. On seeing him, his son parked the vehicle and decided to go home.

He asked his younger brother why his son left. He replied that it was his rule

that when they have to collect only a few employees at John Riggs or any

other mine, they were not to use big vehicles but use smaller vehicles. He

got into the passenger seat of the vehicle and drove away with his brother.

He decided to go via where accused number 5 had said there were people

sitting and drinking liquor, thinking that he might find some people to recruit

for the training. He arrived just as accused number 3 was getting out of the

Avanza motor vehicle. He told accused number 3 that he must tell accused

number 2 to go home because he wanted him to attend the training the next

day. He thought of accused number 2 because he had once told him, after

obtaining a driver’s licence, that he should provide him with employment. He

knew that accused number 2 once worked at the mines and would grasp

easily. It was around 8 or past 8 pm. He asked accused number 3 to make

sure that accused number 2 goes home so that when he attends the

induction or training the following day he should pass the alcohol

breathalyser test. He further requested accused number 3 to ask accused

number 2 to look for more people to attend the training.

461. His legal representative asked him whether he had any telephonic

communication or interaction with accused number 2. He replied that what

he remembers is that his phone had rung and before he could answer, it

went off. He returned the call and there was a conversation between the two

of them. They were talking about the people to attend training. Most of the

calls that day was from him to accused number 2.

462. He went to Lime Acres accompanied by his brother to collect two or three

people he provided transport to and from work. These people only came

from underground at 8:30 pm and he could therefore only leave Lime Acres

at 9 pm. The last person he dropped off was residing in the street to the back

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of the Lounge. He drove past the church and as he was passing the Lounge,

accused number 4 flagged him down. After exchanging greetings and telling

him that he had just dropped people off, accused number 4 asked him

whether he could borrow his phone because there were numbers that he did

not know that had called him. He handed his phone over to him and without

taking too long, accused number 4 returned it to him. He then drove to his

house.

463. Accused number 5 lives in Daniëlskuil at Sloja. He was never in Papkuil,

Postmasburg or Groenwater on 17 August 2016. He only went to Lime

Acres. When he was asked about his cell phone records, he did not dispute

having made and/or receiving calls. He said however, that some of the calls

he made were not answered.

464. He further testified that he was awoken at his house by Colonel Louwrens in

the early hours of the morning of 18 August 2016. He was requested to

accompany him and he was taken to the detective offices. There he took his

cell phones and requested him to unlock them. He did so. He asked him

where accused number 3 was. He replied that he must be at his home and

enquired as to why he was looking for him. Colonel Louwrens examined the

phones and asked him when last he spoke to accused number 3. He said

that he tried to locate him, but could not reach him, referring specifically to 18

August 2016.

465. Colonel Louwrens scrolled through the phones and said to him that

according to what he saw on the phones, he spoke to accused number 3 and

indicated that their conversations had lasted for a few seconds. He told

accused number 5 that he is making a note of that. Accused number 5 did

not argue with him because he mentioned that he spoke to accused number

3 and he does not disputed that. Colonel Louwrens told him that he must

look at what he has written down as being on his phone. He then asked

accused number 5 whether he could phone accused number 3. Accused

number 5 dialled accused number 3 on his instruction and the call was

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placed on speaker setting. He could not reach accused number 3. He asked

Colonel Louwrens why he was looking for accused number 3. He replied that

it was in connection with the murder of a councillor and that accused number

3 slept at his house. Accused number 5 denied that he slept there. He was

taken back to his house.

466. When he arrived at home, he found his family waiting for him. They enquired

what was happening and he explained to them why he was taken by the

police. He phoned accused number 4 and told him that the police had been

at his place looking for accused number 3. He mentioned that it was an army

of police officials, meaning there were many of them. Accused number 4

mentioned that he too did not know where accused number 3 was and that

the police had also been at his place. They discussed what was happening.

Accused number 5 had already taken the Avanza from accused number 3 as

his cousin was supposed to attend a funeral in Postmasburg and the duties

that accused number 3 was supposed to have performed with the vehicle

had been dealt with. He also mentioned that he phoned accused number 2

that morning to discuss what had happened to him and that he was

questioned by the police.

467. Accused number 5 testified that he does not know Tiro Lekgotla. He recalls

accused number 4 requesting him for assistance with a cell phone banking

transaction in sending someone money through e-wallet. The amount he had

to pay was R1, 000.00. Accused number 4 provided him with the number to

which the money was to be sent. He confirmed to accused number 4 that he

received an acknowledgement of receipt of the R1, 000.00. This happened

when they had gone to Kuruman where he was going to buy some parts for

his taxis/motor vehicles. He mentioned that he had assisted people in the

past with e-wallet transactions. He assisted accused number 4 because he

was always available to help him when needed. He was also owing accused

number 4 an amount of R350.00. He would use that amount as part

settlement of the amount of R1, 000.00 and the remainder would be for

washing his vehicles.

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468. Regarding the recording in which Lekgotla alleged that he was the person he

was having a conversation with, accused number 5 denied that he was that

person. He testified that it was not his voice and that it was a fake recording

which Lekgotla created in collusion with the police. He referred in particular

to Warrant Officer Henk van der Merwe, who is known to have attempted to

influence a witness, Arauna Rossouw to lie in her statement. He questioned

why Lekgotla used his two cell phones and not the recording device which he

been given by the police. He further disputed Lekgotla having taken any

pictures with that device or with his cell phones of accused number 4

washing his motor vehicle. He further denied that the motor vehicle in

Exhibits “UU” and “WW” was his Wildtrak Ford Ranger as its licence plate did

not correspond with his.

469. Accused number 5 admitted that the cell phone numbers as well as the

handwriting on the piece of paper that Lekgotla had in his possession, are

his, but he denied meeting Lekgotla on the said day. He never gave Lekgotla

his cell phone numbers, not even on the day of the alleged recording as they

did not meet. He does not know how his handwriting and cell phone numbers

found their way into that paper. He however, mentioned that his cell phone

numbers are well-known as he is a businessman and he assists in

transporting people. He mentioned that since Lekgotla said he once worked

at Petra Mining and that he had seen accused number 5 there, it is possible

that he may have known his cell phone numbers. He further mentioned that

he does not have any money problems and it would have been very easy for

him to simply give Lekgotla the amount of R20, 000.00 which he regards as

mere pocket money. There would have been no need to arrange for the

money to be collected on another day, even if it was under the pretext that it

was meant for cattle. He further mentioned that accused number 4 would

mostly wash his motor vehicle at his place as he has a steam washer and a

vacuum cleaner.

470. Mr Steynberg put it to accused number 5 that his instruction from accused

number 4 is that on 3 September 2016 he had a telephonic conversation with

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accused number 5 to borrow his motor vehicle to drive to Kimberley.

Accused number 5 indicated that that statement is correct because on the

day of his arrest, accused number 4 was in possession of his motor vehicle.

471. Kgomotso Vicky Olyn testified as a witness for accused number 5. He is

currently unemployed. During August 2016 he worked for accused number 5

as a supervisor at Idwala mine in Danielskuil. His duties entailed supervising

the employees he worked with and submit reports to accused number 5. He

served him for six years. Besides his employment he served with accused

number 5 as ministers in the same church. He testified that the mine

company used to conduct training at least on a Thursday and Friday every

month. The regular training is for mine workers. During August 2016 the

training was held on the 12th and the 15th.

472. The training held on the 18th at the Red Club was meant for the truckers at

the mine only. The miner informed him of the training and asked him if there

were any of accused number 5’s employees who were going to attend. He

personally did not attend the training. Accused number 5 phoned him and

reported that the miner informed him that there was a belt that burnt and he

was looking for people to attend to it. His recollection is that the training of

the 18th took place in the morning. He cannot comment on the evidence of

accused number 2 that the training did not take place as he was personally

not there and he never worked with accused number 2. He also did not

assist to arrange for the training and was never requested to assist.

473. The next witness called was Makamelo Legodu, a 22 years old son of

accused number 5. He was in grade 10 in the year 2016. He owned a City

Golf bought by his father. He did not have a driver’s licence. He at times

used to drive it to school. On the 16 August 2016 he drove it to attend his

cousin’s birthday party. He does not remember if he drove the motor vehicle

the following day. He never assisted his father in his transport business. He

remembers one day, a date he cannot remember, his uncle came to him and

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requested to use his City Golf as it was a small vehicle, to pick up people

from the mine in Lime Acres. Because of the past experience of his uncle

claiming to have been sent by his father to use his vehicle when it was not

the case, he decided to travel with him to ensure that he is going to the right

place. His father did not tell him of this arrangement. As they were travelling

along one of the streets, they came across accused number 5 who was

walking alone. He stopped the vehicle and left the two with his motor vehicle.

He does not know what happened thereafter. That concluded his evidence

and the case for accused number 5.

THE CASE FOR THE PROSECUTION

474. As pointed out a lot of evidence had to be presented as a result of the stance

taken by the accuseds in the conduct of their defence. Some of the evidence

proved unnecessary as it was not seriously or at all challenged as well as the

ultimate admissions made by the accuseds, albeit late, at the conclusion of

the State’s case. In summary, the following facts have been proven and or

are not disputed: that the deceased Baaitjie received a massage on his

phone inviting him to a meeting at Kolomela Hub where at a tender to the

value of R800 000.00 was to be discussed and awarded to him on condition

that he pays R80 000.00 as a kick back. The message was sent through the

suspect number at about 14h00; the said cell phone SIM card was obtained

from the cell phone shop of Mr Alie in Danielskuil. The handset used to send

the message is a Nokia N70 owned by accused number 3. Baaitjie travelled

with the deceased Jeffrey Nouse to the said meeting in a Ford Ranger van

belonging to Baaitjie. From Kolomela Hub Baaitjie was called by Lekgotla

telling him to go to the open area next to the school. At the school Nouse

was attacked and badly injured by being shot at close range by persons who

were in the company of Lekgotla. Baaitjie ran away and was caught,

subdued and placed in a boot of a Jetta motor vehicle which was driven on

the road leading to Groenwater. Along the way Baaitjie managed to escape

from the boot and fell on to the tarred road. He was removed from the tarred

road part to the gravel part / tarmac. He was shot on the back of the head

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and died there and then. A fired bullet was found on the ground on which his

head lay face down. Nouse was taken to Robert Sobukwe hospital where he

later died of his wounds on 23 August 2016.

475. The evidence has revealed the acussed number one and Lekgotla drove

from Kuruman to Danieskuil in a Jetta provided by accused number 1.

Lekgotla and accused number 1 picked up two male persons in Danielskuil

and travelled with them to Postmasburg. The two are the ones who attacked

and injured and ultimately killed Baaitjie and Nouse. Other than their identity

being disputed, no suggestion was made that they are the attackers. At least

on Lekgotla’s version the two attackers were left at the scene on the road to

Groenwater.

476. What is left for determination based on the evidence presented is who is the

person who obtained the cell phone SIM card that sent the message to

Baaitjie; who are the two persons who were picked up in Danielskuil and

travelled to Postmasburg and killed the deceaseds. The determination of

these issues will also lead to the determination of other aspects related to the

case. First, some remarks on the witnesses whose evidence is relevant to

the issues for determination.

477. The key witness for the state turned out to be Colonel Louwrens. He is an

investigating officer with vast experience, especially with regard to murder

and robbery cases. He utilised cell phone information in his investigations for

more than 20 years. Based on his experience, the manner in which he

prepared and presented his analysis of the information or data contained in

the cell phone billing records, qualifies him as an expert in that regard74.

478. He only became involved in the investigations on 18 August 2016 at around

10h50 when he was instructed to go to Postmasburg by his senior officer,

74 See: SCHWIKKARD AND VAN DER MERWE PRINCIPLES OF EVIDENCE 4TH EDITION (2016) at

page 93

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Brigadier Mafalala.75 Right throughout the trial an attempt was made to

suggest that Colonel Louwrens imposed himself for some unknown reason

on this investigation. This was specifically suggested by accused number 3.

There is no substance to these vague and unsubstantiated allegations.

Colonel Louwrens’ ulterior motive in imposing himself in the investigations

seems to lie in the unsubstantiated and gratuitous allegation that he hated

accused number 3. If anything, the state should be commended for utilising

its most effective personnel resources in the investigation of these offences.

Upon his arrival in Postmasburg, Colonel Louwrens proceeded with the

investigation in a systematic way and followed almost every lead that later

proved vital.

479. Colonel Louwrens’ evidence in some of the material aspects is that of a

single witness and must be approached with caution. I have already referred

to the authorities as to how the evidence of a single witness should be

approached and treated and that is the approach I have adopted. He

presented his evidence in a clear and satisfactory manner. He answered all

questions put to him in satisfactorily. I found him to be a fair and honest

witness. He also conducted his investigations of this case in a fair manner

with no intention to trump any of the accuseds’ rights. He was subjected to a

lengthy cross-examination by all the legal representative to test his evidence.

He remained steadfast in his narrative of the events and was unshaken and

not discredited. His evidence was consistent with uncontested facts,

objective facts and is also supported by evidence in dispute implicating the

accused.

480. Lekgotla testified as a witness in terms of section 204 of the Act. His

evidence must be approached with due caution on two fronts: as a single

witness and as an accomplice. He was a particularly good witness. He gave

his evidence in a clear and unambiguous manner. He was cross-examined at

length by the legal representatives of all the accused, but his evidence was

not discredited at all on the material aspects. His evidence does not stand

75 Record: Page 33 lines 9 – 19 (06/11/2018)

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alone. His evidence is corroborated by evidence which is in dispute and

which clearly implicates the accused. His evidence is corroborated by

circumstantial evidence. His evidence is further corroborated by the

mendacity of all of the accused. It is a striking feature of his evidence that he

implicates persons who are in close association with each other. This is so,

even though it is common cause that he had no knowledge of the association

between accused numbers 2, 3, 4, and 5 before the relevant time. This

aspect gives him no chance of fabricating a case in such detail, of people

unknown to him, covering their day to day activities which are only privy to

themselves.

481. Furthermore, it is significant how his evidence aligns with the objective cell

phone evidence and medical evidence. This cannot be a coincidence. These

two objective facts conclusively confirm his honesty and reliability as a

witness. He was able to answer questions which heavily implicated him in

the commission of the crimes under consideration in an honest and frank

manner. There is no reasonable basis to doubt that Lekgotla made a

decision to approach the police even before receiving the call from Colonel

Louwrens. The fact that Colonel Louwrens was on his trail does not negate

the fact that Lekgotla went to the police in the full expectation of being

arrested. His attorney must have told him that he is to be arrested76. Lekgotla

was honest enough in admitting that he initially lied to Colonel Louwrens. His

explanation that this was done as a result of the legal advice he received is

not improbable. The important fact is that Lekgotla fully cooperated with the

police after the initial lie and that everything he told the police thereafter,

aligned with the rest of the objective facts and the evidence.77 The honesty of

Lekgotla as a witness is illustrated by his evidence where he conceded,

completely on his own accord, that he only recognised accused number 2 “a

little bit” on the 3rd September 2016 when he was in Danielskuil to meet

76 He must have personally known that he participated in the commission of the serious offences. 77 Record: Page 80 line 18 to page 87 line 25 (12/06/2019)

196

accused number 4. He was however, able to identify him at the Identification

Parade.

482. He identified accused number 2 because he had ample opportunity for the

identification of accused 2 as well as accused number 3 on 17 August 2016.

It was still light when Lekgotla met accused numbers 2 and 3 in Sloja. They

had conversation which would have afforded the opportunity to identify a

person. He also identified the voice of accused number 3 as the voice of the

person he spoke with earlier that day. He also identified accused number 3

as the person on the election posters of the ANC. Lekgotla also had

additional opportunities to observe accused number 2 on the way to

Postmasburg, in Postmasburg and even after they left Postmasburg.

483. The witnesses, Hilda du Plessis, Tsholanang Golele, Petro Heyneke and

Francois Moller can be regarded as experts in their field. Their expertise was

never seriously disputed and no evidence was led to rebut their evidence. I

am mindful of the fact that during the cross-examination of all these

witnesses on behalf of accused number 5 reference to some articles from

unknown sources was made and terms like “ducting” which was never

properly explained was made. Both Du Plessis and Golele explained how the

cell phone network and towers are installed and configured in South Africa.

Their explanation made sense and was based on sound reasoning. Nothing

was placed on record or no tangible and admissible evidence was tendered

to contradict their evidence and respective conclusions that coincided on

those aspects. The evidence of the cell phone expert from the MTN service

provider, was formally admitted without any dispute to the information

contained in the relevant billings (Exhibit CCC). In my view, very little was in

dispute as far as the information contained in the cell phone billings are

concerned. Mostly, the attack boiled down to bold and selective denials,

particularly on aspects that implicated the accused.

484. Mr Cloete, on behalf of the state correctly conceded that the evidence shows

that the kidnapping was part of a continuous criminal transaction aimed at

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killing Baaitjie. A conviction on the charge of kidnapping would be a

duplication of the charge of murder. The State therefore, did not be argue for

a conviction on the kidnapping charge.

485. I need to mention that throughout the trial I adopted an unprecedented

approach of allowing several interruptions during cross-examination of the

state witnesses and the evidence in-chief of the accused and defence

witnesses for counsel to obtain full and further instructions from their clients.

Some of the interruptions were encouraged by me and counsel took

advantage thereof to consult their clients to establish if there was anything

they left out. The reason for my approach was to ensure that the accused are

given full opportunity to instruct their legal representatives and nothing is left

out. I was also of the view that doing so will eliminate instances where

counsel is blamed for not putting an aspect to a witness. Despite my patient

and tolerant approach counsel could not escape blame on some aspects.

486. The cell phone records and data used in casu, was obtained in terms of

section 205 of the Act.78 Colonel Louwrens, Magistrate Terblanche and

several witnesses from the cell phone service providers confirmed the

procedure that was followed to obtain these records. I am therefore satisfied

that the State has proven that the information was properly and lawfully

obtained. The only challenge to how the information was obtained came from

accused number 3 only and his contentions have been covered by the

evidence. More will be said on this aspect later in the judgment.

487. Section 15 of Electronic Communications and Transactions Act 25 of 2002

(“ECTA”) provides for and regulates the admissibility and evidential weight of

data messages. It was not in dispute that the information that appears on the

detailed cell phone billings (as reflected in Exhibit R) represents electronic

representations data and data messages as contemplated in ECTA.

78 KRIEGLER SOUTH AFRICAN CRIMINAL PROCEDURE at page 23 – 53; See also in general: S v

Miller and others 2016 (1) SACR 251 (WCC).

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Evidence relating to cell phone activities and records kept by the service

providers in terms of legislation constitutes circumstantial evidence. In

assessing the cell phone evidence, the Court should approach the evidence

not on a piece-meal basis. By that is meant that the evidence should not be

treated as individual pieces of evidence and be considered individually in

determining whether it excludes the reasonable possibility that the

explanations given by the accused are true. This evidence needs to be

considered in its totality.79

488. Before dealing with the case for each accused I may mention that the

evidence presented by the accused, individually and collectively, was

extremely weak and obviously mendacious. This was partly because they

had a mammoth task of having to explain what was difficult to explain. They

therefore had to resort to being creative in their versions, making unfounded

allegations, vague assertions, far-fetched conspiracies and even direct and

indirect threats at times aimed at diverting the relevant issues under

consideration. The evidence is also riddled with improbabilities. It became

obvious that the association between the different accused continued in their

efforts to mislead the Court. In this regard, accused numbers 2, 3, 4 and 5

found a willing partner in accused number 1. This aspect will be highlighted

in my consideration of the cases of each accused.

THE CASE AGAINST ACCUSED 1

489. Mr Els on behalf of accused number 1 submitted that his version as to his

actions is reasonably possibly true and should be found not guilty on all the

charges. He contended that Lekgotla and Colonel Louwrens’ evidence

relating to accused number 1 is of a single witnesses; that Lekgotla lied to

Colonel Louwrens about the R6000.00 promised to accused number 1; the

reason for driving to Kuruman from the murder scene via Postmasburg is

improbable because it is not the shortest route from where they were to

79 See: S v Reddy and others 1996 (2) SACR 1 (AD) at 8 c – 9 e

199

Kuruman; that driving via Postmasburg placed them at the risk of being

arrested and that the only reasonable conclusion is that Lekgotla was alone

in the Jetta and had to drive via Postmasburg to pick up accused number 1

where, on his version, they left him. It was further argued that Lekgotla

struggled to answer simple questions when confronted with detail, for

example how many occasions he met accused number 1 on 17 August 2016;

not being honest about his communication with Nkwe who should have been

called as a witness for the State; that since Lekgotla did not know accused

number 1 is highly unlikely that he would include someone not close to him in

the commission of offences like these; that for Colonel Louwrens to have

mistakenly mentioned at the bail application that accused number 1

destroyed the holster could only have come from Lekgotla.

490. Lekgotla testified how he came to know accused number 1 and how he got

him involved in the case. One can simply conclude that in the circumstances

of the case accused number 1 would not have been involved had it not been

for Lekgotla. He did not know any of the accused and there is no possibility

that he would have had any contact with them, but for Lekgotla. I do not

understand why accused number 1 did not exploit this situation to his benefit

by coming clean and play open cards. It is a lost opportunity. Lekgotla’s

account of his involvement was not at all exaggerated. It depicted accused

number 1 as someone who was only to provide transport up to a point

initially agreed to, and not be part of the attack of the targets.

491. As I understand accused number 1’s case, he blames Lekgotla for falsely

implicating him in crimes that he did not commit or see being committed. It

may have been easier for accused number 1 to blame Lekgotla for placing

him in the company of people who ultimately made him part of their criminal

activity rather than blame Lekgotla for lying in Court about crimes he did not

commit or see committed. The latter would not have required any creativity

on his part and would have been in line with Lekgotla’s version as supported

by circumstantial evidence and objective facts.

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492. What complicates his case is his conduct and lack of an independent

narration of what happened. He admitted his involvement with Lekgotla from

Kuruman up until Postmasburg, for different reasons and circumstances. He

denies ever being involved in the case. His evidence must be measured

against that of Lekgotla, the circumstantial evidence and the common cause

facts.

493. Lekgotla gave his version as to the participation of accused number 1 on

what transpired on 17 August 2016. Accused number 1 arranged the

transport from his girlfriend. Lekgotla involved him because what he knew

was that the two were to receive a substantial amount of money by merely

dropping the accused number 4 and whoever was to accompany him at a

particular spot and later return them to Postmasburg. This answers the

question why he involved accused number 1. In his mind they were not to

commit any offence. The carrot dangled at them, the R20 000.00 was

enticing to both of them too good to refuse.

494. The evidence clearly shows that accused number 1 must have known that

something illegal is afoot when they left Kuruman. He would have known that

R20, 000.00 is far too much to be paid for an innocent trip to Danielskuil and

back. He must have known that somebody is likely to be killed after the

conversation with accused number 3 in Sloja, especially after the firearm was

given to accused number 2.

495. Accused number 1 was in a position to see the targeted victims when they

parked next to the graveyard around Kolonel Hub. There was already a

suggestion that Baaitjie be attacked there and there. He was present when

alternative arrangements were made to lure the target to a more convenient

spot. He voluntarily approached Baaitjie and Nouse at the parking area in

Postmasburg to divert their attention from the attackers, accused numbers 2

and 4. He drove the vehicle to the place where Baaitjie was captured and

loaded in the boot.

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496. Accused number 1 drove off with Baaitjie in the boot at a high speed. When

Baaitjie got out of the boot, he agreed to stop the Jetta, turned around and

drove to where Baaitjie was on the tar road. He moved the vehicle further on

so that the headlamps should not shine on him to alert any passer-by. He

enabled accused numbers 2 and 4 to get out of the Jetta and to kill Baaitjie.

The explanation by Lekgotla that from the scene where Baaitjie was

ultimately killed, they drove via Postmasburg is not improbable. They had to

act very fast to flee the scene with no time to think and reason as to which

one would be the shortest route to Kuruman. The same route would

ultimately take them to Kuruman. They could not have thought of the risk of

being arrested if they travelled via Postmasburg because it never occurred to

them that they have been seen or followed by anyone. It is only a realm of

speculation as to what could have happened or not. It is a fact that the Jetta

travelled via Postmasburg and was not stopped or pursued by anyone. This

fact is confirmed by accused number 1. There is therefore no need to

speculate on this aspect.

497. Accused number 1 cleaned the Jetta in Kuruman. He flushed the cartridge.

Colonel Louwrens testified that accused number 1 tried to mislead him as to

the whereabouts of the Jetta. Calling the other police officers present at the

time of his arrest and questioning, would in my view, not take the matter any

further given the fact that Colonel Louwrens was cross-examined on this

aspect and nothing came out of it. Accused number 1 informed Colonel

Louwrens that somebody was placed in the boot of the Jetta. This admission

confirmed the evidence of Lekgotla that he was at the scene of the killings. It

is common cause that he had the vehicle washed on 18 August 2016. He

attempted to contact accused number 4 later the night of 17 August 2016.

498. Accused number 1 also received a call from the cell phone of accused

number 5 that same night. Although accused number 4 claims that he made

that particular call and denied that accused number 1 was the recipient of the

call, his reasons for making the call and the circumstances under which the

call was made are farfetched and do not make sense. It is such a

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coincidence that late at night accused number 5 suddenly appears and

meets him in the street on his way home from the lounge. He then borrows

his phone to call an unknown number. A big coincidence is that the person

who answers the call says he is Tiro Lekgotla. The appetite to return the call

ends there and he drops the call without even telling the person he called

who he is. His version as to the two calls is so improbable that it falls to be

dismissed as false. The negative aspect of this lie suggests that they had

something to do with Lekgotla. There would have been no reason for

Lekgotla, on their version, to want to speak to accused number 4 who

cheated/knocked him of his diamond.

499. There was also no reason for Lekgotla to borrow the cell phone of accused

number 1. Lekgotla had his own phones available to make or receive those

calls. The uncontested evidence has shown that Lekgotla used his own

phones to make contact with accused number 4, even after 17 August 2016.

Furthermore, Lekgotla would not have called the number of a cell phone

which was in his own possession80. This aspect could not be explained by

accused number 1.

500. This evidence shows that accused number 1 continued an association with

the rest of the accused even after the incident in Postmasburg. This

conclusion is fortified by the fact that accused number 1 lied during his bail

application and even during the trial to protect accused numbers 2 and 4. He

clearly wanted to create the impression that it was not accused numbers 2

and 4 who went with him and Lekgotla to Postmasburg81. This aspect, like

many others I will refer to later, is highly improbable. Firstly, he corroborates

Lekgotla that two male persons were picked up in Danielskuil and the four of

80 Record: Page 77 line 9 to page 83 line 24 (01/08/2019);

81 Exhibit LLL paragraph 12; Record: Page 8 line 10 to page 9 line 22 (01/08/2019); Page 56 lines 12 to

20 (01/08/2019).

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them travelled to Postmasburg. It is highly improbable that two male persons

would get into his car without looking at their faces. He would travel such a

long distance without trying to see who they are, how they looked like. He

had sufficient time to see and identify these people. In his version Lekgotla

was always speaking on the phone and that never got him interested or

worried what was said. The Afrikaans language that he claims not to hear

and understand was spoken, without worrying him. Not even a single word

he could pick up as he claims. It would take a great deal of effort and skill to

successfully suppress a natural instinct of curiosity in these circumstances. It

is surprising that accused number 1 lived in Kimberley and Kuruman for so

many years, on his version, and yet he could not pick up or understand a

single word spoken in Afrikaans by Lekgotla. He now says he understands

some Afrikaans words since his arrest.

501. The ongoing association between accused number 1 and his co-accused is

also reflected by his refusal to admit that they met accused number 3 in

Sloja. His version is that they waited at the crossing, and the sole purpose of

going to Sloja was for Lekgotla to buy airtime. He allows this delay to happen

despite the fact that he decided to assist Lekgotla in a hurry and had to

return to Kuruman to meet his visitors who were on their way from Pretoria.

He also allows Lekgotla to delay his plans by spending a long time inside the

tuck shop and to further to stand idle with someone without warning him that

he is delaying him unnecessarily. It does not worry him that they are only

there to pick up people and transport them to Kuruman.

502. There were several contradictions between accused number 1’s version in

this Court and what was placed before the Magistrate court during the bail

proceedings. The most significant of these highlighted by the State was his

knowledge that they were to go to Postmasburg when they left Kuruman on

17 August 2016. When these contradictions were pointed out to him in cross-

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examination, he blamed his legal representative at the time, Mr. Mosala82.

There are also numerous examples of where his evidence differed from what

was put to the state witnesses in cross-examination or where his version was

never put to the state witnesses in cross-examination. For this he blamed his

legal representative, Mr. Els83.

503. He painted a picture of Lekgotla being of such bad character and who freely

and boastfully volunteered information about his criminal activities,

unsolicited. He testified that he met Lekgotla very briefly at a restaurant in

Kuruman for the first time. Thereafter, they met at a park in Kuruman. He

was prepared to accept a stone (probably a diamond) from Lekgotla and took

it to his girlfriend’s house, where it remained for some days before it was

returned. He also testified that on 16 August 2016 he met Lekgotla again

who voluntarily informed him that he was involved in fraud involving dealing

in unlicensed firearms at his workplace, and that he was about to commit a

robbery at a farm in Reivilo. When these issues were raised in cross-

examination he could not explain why he wanted to associate with such a

person and eventually, he said he did not take things he said seriously. If

Lekgotla was indeed of such bad character and volunteering his criminal

activities, it would not make sense for him to suddenly withhold the plan to go

to Postmasburg to commit crime from accused number 1. It boggles the mind

why he decided to mention them in Court if he did not take them serious.

504. Accused number 1 was determined to present Lekgotla in a bad light even

after the commission of these offences. He testified that Lekgotla told him

that a person was killed in Kuruman and he provided the firearm that killed

that person. The relevance of this information to these proceedings was

never disclosed. It was however, interesting to later hear the evidence of

82Record: Page 76 line 9 to page 87 line 10 (31/07/2019); Page 1 line 18 to page 6 line 19 (01/08/2019). 83 Record: Page 8 line 25 to page 12 line 8 (01/08/2019); Page 42 line 20 to page 46 line 11

(01/08/2019); Page 46 line 22 to page 50 line 1 (01/08/2019); Page 51 line 10 to page 52 line 12

(01/08/2019).

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accused number 4 involving Lekgotla in illicit diamond dealing as motive for

falsely implicating him in these offences. This clearly showed how the

accused attempted to align their false versions84.

505. Accused number 1 was unable to explain why he arranged transport for

Lekgotla. His reference to a certain person with the name of “Gauteng” was

clearly a fiction. He could also not explain why he did not think that the two

persons who had to be transported from Danielskuil, were not the farm

robbers from Gauteng that Lekgotla was boasting about to rob in Reivilo85.

He gave an exceptionally detailed version of events in his evidence in chief.

The tiniest detail was mentioned. When he was cross-examined about what

has happened in Danielskuil he was not able to give any significant detail. He

even conceded that his “brain must have shut down”. This was a clear effort

to distance himself from what happened in Danielskuil and also to protect

accused numbers 2, 3 and 4. He even went to the extent of telling the Court

that he did not introduce himself to the two persons who were picked up in

Danielskuil and that he never spoke to them86. To remove himself from the

Jetta and conversations taking place there, he suddenly goes and buy

himself a sandwich. He does not even offer same to his companion from

Kuruman. This version sounds highly improbable.

506. He could not explain why he was prepared to go along with the sudden

change of plan to divert to Postmasburg. This, in light of the fact that he

expected visitors from Pretoria87. It does not make sense that Lekgotla says

to him that he should now pick up the people in Postmasburg, and yet he

does not go there, instead he goes to Sloja and also at the crossing, and

worse still he loads two passengers, without being questioned by the person

entrusted with the Jetta. He could not explain why he was prepared to make

84 Record: Page 12 line 19 to page 31 line 21 (01/08/2016).

85 Record: Page 32 line 10 to page 42 line 10 (01/08/2016).

86 Record: Page 53 line 3 to page 57 line 10 (01/08/2019); Page 61 line 4 to page 64 line 20 (01/08/2016).

87 Record: Page 62 line 7 to page 63 line 8 (01/08/2019)

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the vehicle of his girlfriend available to a person like Lekgotla who voluntarily

disclosed his bad character to him. Lekgotla presented himself as a criminal

to him. These are the facts that should have occupied his mind before he

could think of approaching his girlfriend for her car. It is improbable that he

would approach his girlfriend and tell her that a stranger to her is borrowing

her motor vehicle. The State’s contention that the Jetta was used, because

of the fact that accused number 1 had personalised number plates on his

own vehicles and that sometimes it does not “pay to advertise” is

meritorious88.

507. It is also improbable that he would get out of the Jetta in Postmasburg with

the sole intention of buying beer and then left his cell phone and wallet in the

vehicle. Even more so, considering the fact that when he was reunited with

his once neglected wallet, he decided not to buy any beer.89 His thirst for

beer was suddenly quenched by drought and loneliness.

508. He did not seriously confront Lekgotla after the Jetta was returned to him in

Postmasburg. This, notwithstanding his version that Lekgotla was leading

him along all day. It is doubtful that any confrontation took place.90 He again

contradicts his evidence in chief where he gave the impression that when

Lekgotla arrived with the Jetta he got onto the passenger seat, scrolled his

phone and noticed missed calls from his girlfriend and immediately ordered

Lekgotla to the passenger seat and took over the driving. On this version, it

does not make sense to get angry at Lekgotla as he is not the one who

caused him to leave his phone in the motor vehicle. It appears that it is not

Lekgotla’s delay that made him angry, but the fact that he missed his

girlfriend’s calls which he would have had the opportunity to take them had

he not left his phone in the Jetta. Furthermore, considering this aspect, it

does not make sense for him to be angry if Lekgotla left for a minimum of 30

minutes when he did not know where and how far Lekgotla went to. On his

88 Record: Page 64 line 19 to page 65 line 19 (01/08/2019).

89 Record: Page 71 line 10 to page 73 line 8 (01/08/2019).

90 Record: Page 8 line 1 to page 11 line 2 (02/08/2019).

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version he gave him permission to go and drop those people at an agreed

additional fee of R1 000.00. His attempt to remove himself from the Jetta in

Postmasburg is illogical by all accounts, and is clearly unsustainable.

509. Accused number 1 admits that reference was made to blood on the Jetta

after their return to Kuruman. He testified that he did not pay much attention

to that and that he did not see it. This is clearly improbable, considering the

fact that it was the vehicle of his girlfriend91. Accused number 1 wants the

Court to believe that even though he saw a live bullet and an empty holster in

the Jetta on 18 August 2016, it did not raise any suspicion, even when he

knew what kind of person was Lekgotla. This, in light of the fact that there

was reference to blood in the Jetta the previous night. He also testified that

he did not confront Lekgotla about this92. This evidence is so improbable that

it cannot be true. It also became clear under cross-examination that his

instructions to his legal representative as to the transportation of meat in the

Jetta was designed to provide a false explanation for the blood of Baaitjie

which was found in the Jetta93. Otherwise it does not make sense why he

should disclose that he at times transports meat, exclusively, in his motor

vehicle when it has no bearing in this case.

510. It is improbable that he would check up on the visitors from Gauteng in

Mothibistad when he could have phoned them from Kuruman. This version

needs to be considered in light of the fact that Lekgotla testified that he left

accused number 1 at the house of his girlfriend. He participated in two

ceremonies with traditional healers. His evidence relating to the cleansing or

ritualising of the Jetta in the presence and at the instance of Lekgotla is not

corroborated by his witness, Solly Chauke. It may be accepted that accused

number 1 had the Jetta cleansed or ritualised, but that it was done on his

own accord and this was necessary because he was complicit in the killings

91 Record: Page 13 line 14 to page 17 line 3 (02/08/2019) 92 Record: Page 20 line 19 to page 23 line 4 (02/08/2019); Record: Page 23 line 11 to page 27 line 10

(02/08/2019); Page 8 line 4 to page 9 line 2 (05/08/2019).

93 Record: Page 17 line 4 to page 19 line 18 (02/08/2019)

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of Baaitjie and Nouse.94 As a matter of fact, according to Lekgotla, consulting

a traditional healer to check what happened to them, was discussed on their

return to Kuruman. Under normal circumstances, they should have been

shocked by what happened especially if they were not supposed to have

been part of the attack.

511. Accused number 1 confirmed that he contacted Lekgotla after 17 August

2016 and that money was discussed. An amount of R6,000.00 was

mentioned. This confirms that he was still expecting his cut of the

R20,000.0095.

512. It is highly improbable that he heard nothing of the killings of Baaitjie and

Nouse given the amount of media coverage which followed the events of 17

August 201696. He was prepared to accuse the lead prosecutor of “changing

evidence” without any basis for such an accusation. This became a theme

which repeated itself in the evidence of some of the other accused as well. It

represents a telling illustration of how the accused were prepared to lie in

order to align their versions97. According to his evidence, Lekgotla was

nothing but a nuisance and bother in his life. He could not give any

explanation why he was prepared to allow himself to be run by Lekgotla who

he dismissed of not being afraid of him when asked in court.98

513. According to his version Lekgotla owed him more than R1, 000.00 but only

demanded R1, 000.00 from him. When confronted about this aspect, he

gave the answer that he only needed a R1, 000.00 to “get drunk”99. This

version is not reasonably possibly true as discussed above.

94 Record: Page 27 line 12 to page 30 line 15 (02/08/2019); Page 1 line 1 to page 11 line 25

(23/08/2019

95 Record: Page 30 line 16 to page 31 line 15 (02/08/2019). 96 Record: Page 31 line 16 to page 32 line 25 (02/08/2019).

97 Record: Page 9 line 11 to page 10 line 15 (05/08/2019). 98 Record: Page 11 line 20 to page 14 line 20 (05/08/2019).

99 Record: Page 15 line 1 to page 17 line 11 (05/08/2019)

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514. In my view the State has succeeded to prove that accused number 1 joined

in with the other accused and actively participated in the killing on Baaitjie

and Nouse. His liability is based on the fact that he is a co-perpetrator, he

became part of the agreement to kill in Danielskuil and his actions also

complies with liability on the basis of common purpose. His version is false

and stands to be rejected. The State has not succeeded in proving counts

four and five against him. It cannot be concluded on the evidence presented

that he was in possession of the firearm and ammunition or that he had any

such intention either on his own, with or through his co-accused.

THE CASE AGAINST ACCUSED 2

515. On behalf of accused number 2 Mr Setouto submitted that the state has

failed to prove the guilt of the accused beyond a reasonable doubt and that

his version is reasonably possibly true and should be acquitted on all the

charges against him. He also contended that Lekgotla is a single witness

regarding the trip to Postmasburg and as to the murders of Baaitjie and

Nouse. Referring to section 204 of the Act, he submitted that his evidence is

not satisfactory in all material respect and lacked corroboration.100 He further

submitted that his evidence must further be approached with caution

because he is an accomplice.101 He argued that Lekgotla’s story is riddled

with inconsistencies and should not be accepted without any corroboration.

516. Mr Setouto contended further that the manner and circumstances under

which accused number 2 was identified were unfair to him. Lekgotla, he

submitted, just went there to rubberstamp the identity of a person he already

saw because the case was largely covered by both electronic and print

media; that the police also took a picture of accused number 2 on 22 August

2016 at the Postmasburg court and that identification parade was in breach

of the rules prescribed in section 37 of the Act in that Lekgotla was left in the

company of people who are not in the employ of the police services.

100 S v Gentle 2005(1) SACR 420 (SCA). 101 S v Hlapezula and Others 1965(4) SA 439 (AD) at 440E; S V Mia and Another 2009(1) SACR 330

(SCA) at para (12).

210

517. With regard to accused number 2’s defence of alibi, namely that he was at all

times in Danielskuil and never went to Postmasburg, it was contended that

he is to some extent corroborated by the evidence of the Kaleche couple

who mentioned under cross examination that they cannot exclude the

possibility that he left their place at around 7pm to 8pm.

518. Lekgotla testified that accused number 2 was one of the two assassins. The

cell phone was given to him and he clearly knew that this was the cell phone

which was used earlier that day to contact Baaitjie. He was eager to have

Baaitjie killed already at the Kolomela Hub. This means that he was not

surprised by seeing Nouse at the Kolomela Hub and in no way did this fact

divert him and accused number 4 from their mission to kill Baaitjie. By luring

Baaitjie to a more convenient spot for the attack despite his company, Nouse

was immediately included as someone to be killed if needs be. No attempt

was made to remind Baaitjie that he must come alone as initially planned as

an attempt to spare Nouse of his life.

519. Accused number 2 played a contributory leading role by instructing Lekgotla

to communicate with Baaitjie on the cell phone. At the parking area, he

remained with accused number 4 when Lekgotla and accused number 1

approached the two deceased, clearly aligning himself with the shooter. He

assisted in catching Baaitjie and in overcoming his resistance. He assisted in

placing Baaitjie in the boot of the Jetta. He instructed accused number 1 as

to the route to be taken out of Postmasburg. He urged accused number 4 to

shoot Baaitjie whilst Baaitjie was in the boot of the Jetta. He assisted

accused number 4 in dragging Baaitjie off the tar road and he was present

when Baaitjie was killed.

520. The fact that Lekgotla was able to identify accused number 2 at the

identification parade, confirms the reliability of his identification. The

identification parade was properly conducted and nothing untoward

211

happened which could affect the reliability of the identification.102 The photo

album Exhibit AAA illustrates the reliability of the identification parade103. The

persons who it is contended are not police officers are the members of the

witness protection unit who Lekgotla was under their care. There was

absolutely nothing wrong with that. On the contrary it added legitimacy to the

identification parade process because they had no interest in the outcome of

the process. Their only interest was the safety of Lekgotla. similarly, there is

no evidence that Lekgotla was ever shown the picture of the person to point

out or that his prior knowledge of accused number 2 was from the media. His

unchallenged evidence is that he identified accused number 2 as one of the

two male persons he travelled with to Postmasburg in the Jetta with accused

number 1.

521. It is tried that the evidence of identification must also be approached with due

caution. In S v Mthetwa 1972 (3) SA 766 (A) at 768 the principle was

explained as follows:

“Because of the fallibility of human observation, evidence of identification is

approached by the Courts with some caution. It is not enough for the

identifying witness to be honest: the reliability of his observation must also be

tested. This depends on various factors, such as lighting, visibility and

eyesight; the proximity of the witness; his opportunity for observation, both as

to time and situation; the extent of his prior knowledge of the accused; the

mobility of the scene; corroboration; suggestibility; the accused face, voice,

built, gait, and dress; the result of identification parades, if any, and, of

course, the evidence by or on behalf of the accused. The list is not

exhaustive. These factors, or such of them as are applicable in a particular

case, are not individually decisive, but must be weighed one against the

other, in the light of the totality of the evidence, and the probabilities.”

102 KRIEGLER (supra) at page 3 – 6 warns about making cases involving identification parades too

complicated. The police directives, the rules which were developed in practice and even the opinions

expressed by the text books, are all guidelines and “not laws cast in stone”. 103 See also Exhibit BBB

212

In this case Lekgotla had ample time to see and be able to identify accused

number 2. They travelled together in the same motor vehicle from Danielskuil

to Postmasburg. He saw him again on the 3rd September in Danielskuil. His

evidence meets the standard referred to in Mthethwa’s case.

522. Conclusive corroboration for the evidence of Lekgotla is to be found in the

cell phone evidence which places the cell phone of accused number 2 at

Postmasburg and Groenwater at the relevant times104. The undisputed

association of accused number 2 with accused numbers 3, 4 and 5 also

provides corroboration for the evidence of Lekgotla. Pamela Plaatje also

confirms the evidence of Lekgotla as to what accused number 2 wore on 17

August 2016105.

523. There is also undisputed evidence that accused numbers 2 and 3 left the

place of Boitumelo Kaleche with the Avanza. This ties in with the evidence of

Lekgotla who testified that when he met them they were travelling together in

the Avanza. The Kaleche couple conceded that they could not exclude the

possibility of accused number 2 leaving their place around 7pm to 9pm was

based on the fact that they did not specifically look at the watch/ clock to

confirm the time they left. There was nothing special for them to have done

so. They mentioned that there was still light when they left. Accused number

2 vaguely says they left between 7pm and 8pm. If his version is to be

accepted, then it means there would also have been something special or

unusual that would make him to note or check the actual time he left the

place. This version is merely created to remove accused numbers 2 and 3

from meeting Lekgotla and accused number 1 at the Jetta.

524. Accused number 2 presented himself as a dishonest and unreliable witness.

His counsel conceded that he was not a good witness in some instances.

Where I differ with him is the word “some instances”. He should have said in

104 Exhibit R: Page 104. 105 Record: Page 56 lines 15 – 23 (27/11/2018).

213

many material instances. It is remarkable that he was prepared to confirm

the correctness of the cell phone billing, except where it implicates him106.

His version that Warrant Officer Coetzer took his cell phone on 18 August

2016, just to return it later the same day, is so improbable that it should be

dismissed as false. It is surprising that he offered no resistance when his

phone was politely requested from him. The police had no reason to take his

cell phone. It was pointed out that his girlfriend was contacted from that cell

phone when it was supposed to be in the possession of the police. 107 His

evidence as to how and why Warrant Officer Coetzer took his cell phone is

itself confusing. He was unable to present it in a coherent and satisfactory

manner. He had to take us back in his evidence in order to accommodate

this creation. He mentioned this aspect when he had already testified about

having left his home to attend the meeting and busy recruiting other people

to attend the alleged meeting in the morning of 17 August 2016. Taking us

back to the 17th was to accommodate the cell phone communications

between him and accused number 5 that he had omitted.

525. Accused number 2’s evidence as to the reason why the phone was taken

from him is different from what was put to Colonel Louwrens in cross-

examination. This is significant because this evidence was clearly fabricated

to provide an explanation for the fact that the handset of accused number 2,

with the SIM card of accused number 3 in it, was used by accused number 4,

to contact Lekgotla on 18 August 2016108. The implication of this false

evidence, read with the false version of accused number 3, is that the police

must have stolen the Nokia N70 from the Avanza on 15 August 2016. This

notion is clearly ridiculous and defies logic. It does however, illustrates in a

striking manner, how entangled the different fabricated versions of the

accused had become109.

106 Record: Page 37 line 4 to page 45 line 15 (06/08/2019); Page 37 line 9 to page 38 line 11

(07/08/2019).

107 Record: Page 49 line 20 to page 51 line 4 (06/08/2019); Page 55 line 1 to page 56 line 21

(06/08/2019).

108 Record: Page 52 line 3 to page 53 line 8 (06/08/2019). 109 Record: Page 3 line 14 to page 12 line 25 (07/08/2019).

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526. It was further pointed out to accused number 2 that the police could not have

taken his cell phone on 18 August 2016 because accused number 2 had

contact with the same numbers, on other days, which were contacted at the

time the phone was supposed to be in the possession of the police110. It is

clear from the cell phone billing that he did contact “Golo” on 17 August

2016. This evidence was clearly designed to align with the evidence of

accused number 3 and is patently false. This evidence was designed to

show that accused numbers 2 and 3 were engaged in other activities when

they met Lekgotla. Although accused number 2, in trying to explain the fact

that the cell phone billing did not show a call to “Golo”, asserted that the cell

phone billing was incorrect, this was never taken up with Golele or

Heyneke.111

527. Accused number 2 went so far in his efforts to protect accused number 3 and

generously volunteered a defence for him by testifying that accused number

3 was “scratching his ear” when it is clear on the video footage of the shop

that accused number 3 was on a cell phone. However, accused number 3

discredited him by admitting that he was indeed using a cell phone at the

time, that allegedly belonged to a certain Larry112.

528. He denied bluntly that he was in Postmasburg at 19h30 on 17 August 2016.

This denial is made even in light of the damning cell phone evidence113. He

denied that he wore a coat on 17 August 2016, a serious aspect that was

never disputed when Pamela Plaatje testified to that effect114. He confirmed

that he called accused number 4 at 18h45 and 18h49 on 17 August 2016.

This important evidence corresponds with Lekgotla’s evidence that they had

to call accused number 4 because he took long to join them at the crossing.

110 Record: Page 26 line 16 to page 30 line 2 (07/08/2019).

111 Record: Page 30 line 5 to page 36 line 16 (07/08/2019). 112 Record: Page 40 line 4 to page 41 line 1 (07/08/2019). 113 Record: Page 43 line 18 to page 44 line 2 (07/08/2019).

114 Record: Page 44 line 6 to page 47 line 18 (07/08/2019)

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He testified that he was in Danielskuil when he called the number 071 850

9434 of accused number 3 at 19h56 on 17 August 2016. The cell phone

billing shows that he was in the reception area of Groenwater at the time115.

The only logical conclusion in the circumstances is that this call was made to

inform accused number 3 that accused numbers 2 and 4 were stranded in

Groenwater. He obviously knew that he could not call accused number 3 on

the number 082 667 6133, because the handset in which this particular

number was used, was in the Jetta116.

529. The cell phone records reflect communications between accused numbers 2

and 5 after the aforesaid call to accused number 3. It cannot be a mere

coincidence that all of his calls to accused number 5 from 19h58 to 20h26

were picked up by the Groenwater towers. Again, even in light of this

conclusive evidence, he persisted in his lies that he was in Danielskuil at that

time. Lekgotla’s evidence that they left them in Groenwater is corroborated

by these calls and the cell phone records of both accused number 2 and

accused number 5117. It is significant that the cell phone billings show that he

and accused number 5 were back in the reception area of Danielskuil more

or less at the same time.

530. It was pointed out to accused number 2 in cross-examination that it is

significant that the same people implicated in the evidence of Lekgotla

communicated with each other in the middle of the night of 19 August 2016,

after being informed that the police were looking for accused number 3118.

The alleged events of 25 April 2016 and 29 September 2016 were never

taken up with Colonel Louwrens when he testified. This evidence of accused

number 2 was clearly an afterthought aimed at discrediting Colonel

Louwrens119. He failed to explain all the “coincidences” of how the

115 Record: Page 47 line 20 to page 52 line 15 (07/08/2019); 116 Record: Page 52 line 18 to page 59 line 6 (07/08/2019). 117 Record: Page 59 line 16 to page 61 line 2 (07/08/2019); Page 63 line 1 to page 65 line 6

(07/08/2019); Record: Page 65 line 8 to page 66 line 25 (07/08/2019).

118 Record: Page 68 line 16 to page 69 line 19 (07/08/2019).

119 Record: Page 69 line 20 to page 71 line 26.

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“fabricated” evidence of Lekgotla corresponds with the other evidence

implicating him120.

531. Accused number 2’s version is not only not reasonably possibly true, but is in

fact false. It stands to be rejected. The State has succeeded to prove his guilt

beyond a reasonable doubt. His liability is based on the fact that he is a co-

perpetrator; also that he was clearly part of the conspiracy or prior

agreement to kill and his actions also complied with liability on the basis of

common purpose. On the fourth and fifth counts the evidence shows that the

firearm was in his physical detention at a certain stage.

THE CASE AGAINST ACCUSED NUMBER 3

532. Mr Buthelezi represented accused number 3 until he concluded his

submissions where after his mandate was terminated by accused number 3.

He submitted that the state’s version is false and that accused number 3’s

version is reasonably possibly true and should be found not guilty and be

discharged on all charges against him. He contended that the State failed to

prove that accused number 3 had his cell phone in the cell phone shop of Mr

Ali and not that of the late Larry; that the State failed to prove that he

received a SIM card and not an SD card; that the video recording of the

events inside the shop is not authentic; that the deceased Baaitjie knew

accused number 3 and would have recognised his voice and told his wife

who called him; that Ms Lebogang Nouse testified that her son Jeffery Nouse

told her that Baaitjie told him that a white man phoned him and that accused

number 3 is not a white man, meaning he is not the one who called Baaitjie:

that it is not true that Hilda du Plessis from Cell C sent the cell phone records

to Colonel Louwrens after hours on 18 August 2016 because the records do

not have a date; that Colonel Louwrens had no right to arrest accused

number 3 because Sergeant Moshe testified that they searched for accused

number 3 on the afternoon of the 18th when there was no evidence linking

him to the offences; that although Colonel Louwrens did not know who the

120 Record: Page 73 line 26 to page 81 line 2 (07/08/2019).

217

suspect was in the afternoon of the 18,th Captain Charlie knew who the

suspect was because he caused Exhibit JJ to be sent to Cell C by Mepi

already having the IMEI number of accused number 3’s Nokia N70 cell

phone; that Lekgotla ‘s evidence be rejected because he lied to Colonel

Louwrens and was evasive and defensive.

533. Accused number 3 filed two sets of supplementary Heads of Argument in

which he personally argued his case. In these documents he repeated and

expanded on some of the contentions made by Mr Buthelezi. He also raised

a number of issues of evidentiary nature which were not part of the evidence

tendered in court; in some instances, he drew conclusions and inferences

from such issues which were not presented as evidence during the

proceedings. For obvious reasons no reference and reliance shall be placed

on the evidential material which is not properly placed before Court. He

contended inter alia, that Colonel Louwrens imposed and bulldozed his way

into being the investigating officer in the case which was and should have, in

his view, rightfully have been investigated by the police in Danielskuil; that

there was no reason for the involvement of the HAWKS because there was

no political motive established when he was arrested; that the case was in

fact politicised by Colonel Louwrens who also together with the lead

Prosecutor in this case want to tarnish the image of the ANC; Colonel

Louwrens committed fraud by instructing then Captain Ramela to change the

date in her statement.

534. Accused number 3 contended that Lekgotla’s “confession” was not

procedurally obtained and was unduly influenced by cell phone records and

that Lekgotla’s statement did not comply with “Instructions of the SAPS 3 M”.

As pointed out the rest pertain to irrelevant matters and references to

evidence which was not tendered and some are baseless accusations. He

also repeated matters he spoke about during his evidence in chief, some of

which referred to matters not connected to his case, but to his co-accused

whose counsel deemed irrelevant and not worthy to raise. It is not necessary

to cover each and every contention made by accused number 3 in my

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analysis as they have been covered by the evidence tendered by the State.

His repeated reference to the matters that he does not accept or agree with,

without any acceptable reason, does not elevate his contentions to the truth

or the correct legal position.

535. The evidence of Lekgotla implicates accused 3 in the commission of the

offences. Together with accused number 4, he communicated with Lekgotla

to provide transport for the killings. He provided Lekgotla with the number

062 370 0114, the number which was used solely for their mission. He gave

instructions to Lekgotla, accused numbers 1 and 2 in Sloja. He informed

Lekgotla as to the motive of the “deal” and also why it was decided that he

(accused number 3), would not be joining them for the trip to Postmasburg.

536. He provided the cell phone which was used to contact Baaitjie in

Postmasburg. He obtained the SIM card which was used to lure Baaitjie to

Postmasburg. His cell phone was used to lure Baaitjie to Postmasburg. He

clearly is the person who sent the SMS as per Exhibit K. The contents of the

SMS show that he foresaw the possibility that Baaitjie would bring someone

along and instructed him not to do so. Interestingly, Mr X made repeated

references to the fact that there was a possibility that there might be two

persons instead of one, and that provision should be made to cater for such

an eventuality. Accused number 3 was a prominent member and official of

the political party, and if evidence of the recording of 3 September 2016, is

found credible and that Mr X is in fact accused number 5 speaking, he stood

to gain politically from the death of Baaitjie.

537. He is a known associate of accused numbers 2, 4 and 5 who are also

implicated by the evidence as being complicit in the deaths of Baaitjie and

Nouse as a collective. His SIM card was used in the handset of accused

number 2 and contacted Lekgotla on 18 August 2016. He is placed, with

accused number 2, in the Avanza more or less at the time when Lekgotla

testified that he met them in Sloja. Dustin Moses testified that he drove

219

passed the house of Baaitjie not long after Baaitjie left for Postmasburg. This

evidence of Dustin Moses is significant because Colonel Louwrens

happened to know about this aspect before he arrested accused number 3

on 19 August 2016. I doubt that Dustin Moses knew the importance of this

aspect at that time. This conduct suggest that he went to establish whether

Baaitjie indeed left for Postmasburg. He drove accused number 4, the

shooter, to the crossing to board the Jetta. He did not only conspire with the

others to kill but played an active role to ensure that the plan is executed.

538. Accused number 3 was clearly a lying and unreliable witness. He refused to

give straight answers to simple questions. He preferred to make long

speeches which had no bearing on the questions which were asked. He

reverted to wild, irresponsible and unfounded allegations as soon as he was

unable to answer questions in cross-examination. It was obvious that he has

no respect for the truth and that he is prepared to do anything and say

anything to get his way. He came across as an intelligent person who had an

idea of court proceedings and little knowledge of legal principles, which if it

does not allow itself to be properly guided by someone trained in law will be

counterproductive. He presented arguments instead of evidence and went to

the extent of arguing the cases of his co-accused, especially where their

versions or omission to deal with certain aspects implicated him in the

offences. He further resorted to arguing against issues that he distanced

himself from and would not accept obvious facts which were common sense.

He was at pains to try and search for so-called contradictions in the State

witness’s testimony on issues that are not germane to the case and

immaterial.

539. The record is replete with unsatisfactory aspects of his evidence which bear

no repetition. His defence is that his Nokia N70 handset was stolen on 15

August 2016 and that he does not know what happened to that phone after

15 August 2016. This means that he could not dispute the fact that his lost

phone was used to contact Baaitjie on 17 August 2016. Nevertheless, this

did not prevent him from making unsubstantiated assertions as to which SIM

220

card was used in this phone on 17 August 2016121. When confronted with the

logical explanation of what is seen on page 26 of Exhibit R, he without any

basis whatsoever, accused the lead Prosecutor of editing the document or

that he should know who added the information on the document122. He

refused to accept that there was clear evidence as to the number of Nkwe

being used in the Nokia N70 handset on page 212 of Exhibit R123.

540. Page 26 of Exhibit R is a usage profile of the Nokia N70 handset and shows

several cell phone numbers that were used in it in the period under review.

His cell phone numbers and those confirmed by accused number 5 as

belonging to accused number 3 are implicated. The document was never

challenged when Colonel Louwrens and Hilda du Plessis testified. It was only

when he testified that he contended that there is no conclusive proof that the

suspect cell phone number was used in the Nokia N70 handset. However, he

could not explain why this was never raised in the cross-examinations of

Colonel Louwrens and Ms du Plessis. He was even prepared to accuse Ms

du Plessis of lying, something she was never confronted with these

supposed lies when she testified124. He blamed his legal representative for

not raising the said aspect with the witnesses. He changed his version as to

whether he instructed him to raise them or not.

541. The fact that the suspect number does not appear in the usage profile of the

Nokia N70 handset on page 26 of Exhibit R has been satisfactorily

explained. The document itself explains that “There is also another Cell C

number used with the handset”. Page 22 which is a usage profile for the

suspect number clearly specify that it was used in the IMEI 3580018933250

which is the Nokia N70 handset. It was used in the Nokia N70 handset on 17

August 2016 from 09:57 until 19:28. It made and received several calls. It

121 Record: Page 40 line 14 to page 41 line 20 (13/08/2019) 122 Record: Page 45 line 26 to page 48 line 14 (13/08/2019) 123 Record: Page 48 line 15 to page 49 line 4 (13/08/2019)

124 Record: Page 49 line 5 to page 63 line 14 (13/08/2019); pages 49 to 66 of the same record.

221

also sent and received messages. To dispose of this aspect, I find that the

suspect number was indeed used in the Nokia N70 handset on 17 August

2016 and that it was used as such to send the message to Baaitjie for the

meeting at which he was attacked with Nouse.

542. Accused number 3, took issue with a subpoena in terms of section 205

which was issued to the service provider 8ta. When it was pointed out to him

that this should have been raised in the evidence of Colonel Louwrens,

because the information was available when Colonel Louwrens testified, he

accused the State of not providing this information for purposes of trial. This

is another example of an unfounded allegation125. When he was confronted

with the fact that these issues were not raised with Colonel Louwrens he

testified that it was part of the strategy employed by himself and his legal

representative not to address all aspects in cross-examination. Later, he

contradicted himself by testifying that he did not remember why it was not put

to Colonel Louwrens126. The contention on behalf of the State that the cross-

examination of accused number 3 revealed that he deliberately did not raise

certain aspects with the state witnesses because he did not want to give

them the opportunity to provide explanations for certain issues is not without

basis127. His legal representation knows the importance of putting material

aspect of an accused person’s case to the witnesses for the state. He could

therefore not have advised him to only mention them when he testifies,

perhaps as a secret weapon.

543. He persisted in his unfounded accusations that Colonel Louwrens edited

page 22 of Exhibit R, even when it was pointed out to him that it was

impossible when taking into account the evidence of Ms du Plessis and Mr

Moller that it is impossible to temper with cell phone data provided by the

service provider128. He even went as far as accusing Colonel Louwrens and

Ms du Plessis of colluding in defrauding the Court. He could however, offer

125 Record: Page 60 line 20 to page 66 line 25 (13/08/2019).

126 Record: Page 67 line 1 to page 70 line 15 (13/08/2019) 127 Record: Page 70 line 16 to page 71 line 24 (13/08/2019) 128 Record: Page 72 line 21 to page 76 line 15 (13/08/2019).

222

no explanation why this was not raised in the cross-examination of Colonel

Louwrens and Ms du Plessis129. It was explained to him how it was possible

for Ms du Plessis to have a CCR number before Colonel Louwrens contacted

her. He refused to agree with the logical explanation and rather decided to

accuse the State of forging the email, Exhibit JJ130. Quite evidently, the

process to get call data information was started by Crime Intelligence which

came to the scene before Colonel Louwrens was tasked to take the

investigation over.

544. He could give no explanation why his legal representative did not put it to

Boitumelo Kaleche that on 17 August 2016 he obtained an SD card and not

a SIM card as he testified. This is central to his defence and the lack of

cross-examination suggests that the version of the SD card is fabricated131.

What he ultimately presented to court was not an SD card but its holder or

Adapter. It is very clear from the video recording, Exhibit 3 and the still

pictures taken from the video recording, Exhibits Magawu 3 and 4, that

accused number 3 had an object similar to Exhibit 8 (the string of SIM cards)

in his hands. When this was pointed out to him, he bluntly accused the State

of intentionally manipulating the images.132 It is such a coincidence, if he is to

be believed, that he allegedly received an SD card at the time when a SIM

card that was used in his alleged stolen Nokia N70 handset was sold by the

shop owner.

545. The existence of the Nokia N70 handset is a critical issue in this case. Mr

Setouto, who owes a duty to his client to act ethically and act in his interest,

cross examined accused number 3 on the said handset. His cross

examination revealed that accused number 3 did not go to the cell phone

129 Record: Page 76 line 18 to page 80 line 6 (13/08/2019).

130 Record: Page 80 line 11 to page 92 line 3 (13/08/2019).

131 Record: Page 92 line 20 to page 98 line 24 (13/08/2019); see also the cross-examination by the State on this aspect at page 95 to 97 of 13 August 2019. He conceded that he did not instruct his legal representative about the SD card then.

132 Record: Page 2 line 6 to page 6 line 9 (14/08/2019); Page 17 line 18 to page 21 line 4 (14/08/2019).

223

shop to report and search for Nokia N70 handset but for the Samsung

handset. He could not extract a satisfactory answer as to why he did not

report the loss of the Nokia N70 handset as well, except that accused

number 3 thought that he may have merely misplaced it. He also conceded

that he does not know what happened to his Nokia N70 handset, it just got

missing. He further conceded that according to him after he lost his phone

someone proceeded to use it.

546. Mr Setouto wanted to know from him why his friend, accused number 5 told

Colonel Louwrens as appears in Exhibit R, page 34 that he phoned him on

his supposed lost SIM card with number ending with 6133 and he answered

the call. His response was simply that he did not have the phone in his

possession. When further pressed on the issue, he said he cannot comment

on accused number 5’s affidavit and he does not know the circumstances

under which he made the calls. Mr Setouto pointed out to him that there are

several calls between his number and that of Mgcera, former accused

number 6, and he never together with accused number 5 and 4 complained

that there was someone answering his phone and also phoning them. He

mentioned something that was never put to the state witnesses namely, that

accused number 4 mentioned to him on 18 August 2016 on their way to court

to apply for relaxation of their bail conditions that someone is calling him from

accused number 3’s number and he merely noted the report and dismissed

it.133 This was a vital aspect in the version of accused number 3. This was

information which could have exonerated him.

547. Mr Setouto was, expected, concerned that the logic of accused number 3’s

version is that accused number 2 should have been the one who had the

stolen Nokia N70 handset from 15 August 2016 in his possession because

on 18 August 2016 accused number 3 ‘s SIM card for the number ending in

6133 was used in accused number 2’s handset. Accused number 3’s reply

was that at the time accused number 2’s phone was taken by the detectives,

meaning that the police had in their possession his lost cell phone and SIM

133 Record page 33 line 1 to 20 (13/08/2019).

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card, and inserted his SIM card in accused number 2’s handset. This

explanation does not make sense because it would also mean that the police

exchanged calls with Mgcera and other accused number 3’s friends using

the Nokia N70 handset and the suspect number. Interestingly, on 18 August

2016 the lost 6133 number was used in the same handset used by accused

number 2.134 It is very clear from the evidence that the numbers 082 667

6133 and 062 370 0114 had contact with the numbers of accused numbers

4, 5 and Mgcera after 15 August 2016. His inability to follow up on these

leads to the inescapable conclusion that the Nokia N70 handset was in the

hands of accused number 3 himself when these calls were made.135 The

trend of accused number 3’s evidence is that it must be accepted that he lost

his phone on the 15th . However, if it is established that accused number 2’s

handset used his SIM card on the 18th, then the phone is placed in the

possession of the police. It would also mean that it is the police who sent the

message to Baaitjie using accused number 3’s Nokia N70 handset.

548. The contention by the State that accused number 3’s evidence about the

now deceased “Larry” is suspicious has merit. Even more so, when

considering that “Larry” was never mentioned when Colonel Louwrens

testified.136 He could not explain why he waited almost two weeks before he

reported his stolen Samsung handset137. Larry is only placed in the picture to

account for his use of the cell phone in the cell phone shop. Strangely, he did

not tell Boitumelo about this phone and Larry, and that he must return it to

him. He chose to drive to Sloja with Boitumelo and not drop the phone at the

police station where Larry was and thereafter proceed to Sloja. This is

despite the fact that Larry had phoned him looking for his cell phone. It is one

of the mysterious coincidences that Larry would plant a cell phone in the

Avanza for accused number 3 who allegedly had no cell phone, at the time,

to be recorded using it at the crucial time. This version, given the evidence

134 Record page 29 of Exhibit R. 135 Record: Page 32 line 8 to page 41 line 8 (14/08/2019); Page 14 line 16 to page 17 line 3 (15/08/2019).

136 Record: Page 2 line 10 to page 13 line 2 (14/08/2019).

137 Record: Page 13 line 8 to page 14 line 25 (14/08/2019)

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produced by the cell phone data, the evidence of Boitumelo, the video

footage of the events at the shop and the circumstantial evidence as whole,

makes his version not to be reasonably possibly true.

549. When accused number 3 was confronted with the fact that Lekgotla was able

to implicate people who were in close association with each other, he

suddenly alleged that Colonel Louwrens told Lekgotla what to say. Once

again, this was not something which was raised in the cross-examinations of

Colonel Louwrens and Lekgotla.138 Be that as it may, the motive and reasons

advanced for Lekgotla to falsely implicate accused number 2 and 4 differs

materially from what he says. Theirs has to do with the illegal sale of

diamonds and not Colonel Louwrens. Later he contended that his false

implication in the case is aimed at tarnishing the image of the ANC,

something which is baseless.

550. It is in the context of this trial, significant that accused number 3 conceded

that Baaitjie was a very strong candidate in Ward 2. He was well liked and

respected and the type of candidate which could influence an election

towards a particular result. He used to be a member of the ANC.139

551. Accused number 3 accused Colonel Louwrens in his evidence of “scaring

people off”, “bulldozing people” and “assaulting people” although this was

never raised in the cross-examination of Colonel Louwrens. He was even

prepared to accuse the lead Prosecutor of knowing all about it.140 He came

up with a surprising version that accused number 5 did not make the

statement as per page 34 of Exhibit R. When he was asked in cross-

examination to elaborate on this, he refused to give any more answers on

138 Record: Page 24 line 18 to page 26 line 3 (14/08/2019)

139 Record: Page 31 line 16 to page 32 line 5 (14/08/2019) 140 Record: Page 42 line 17 to page 47 line 25 (14/08/2019)

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this.141 Once again, he is making up a case for accused number 5 in order to

protect himself from evidence against him.

552. When he was confronted with Exhibits N and O, he initially refused to answer

questions, because he wanted the handwritten notes. This was something

which came up for the first time in the trial and did not receive any mention

when Colonel Louwrens testified. He also alleged that the latter was angry at

him and that they had an argument during the interview. Again, this was

never raised when Colonel Louwrens testified.142 Very important, during this

interview, he initially did not tell Colonel Louwrens that his Nokia N70

handset was stolen, but informed Colonel Louwrens that a Mobicel phone

was stolen.143

553. Although he disputed the information that accused number 5 paid for his

hotel room on 18 August 2016, this was never raised when Colonel

Louwrens testified.144 He bluntly refused to comment on the contents of the

SMS, Exhibit K. He rather decided to accuse the State of not following up on

leads and of colluding with newspapers.145 His evidence that the photo as

per Exhibit M was not his WhatsApp profile but rather taken from his

Facebook page was also something new which was never raised when

Louwrens testified.146 He was prepared to accuse the State of taking the

photos as per Magawu 5 and 6 only on 14 August 2019, while it was

common cause that these photos were taken before that. This is another

example of him saying whatever he wanted to say and without establishing

the real facts.147 The photos do not take his case anywhere because his cell

phone number is not disputed and also that he owned the Nokia N70

handset.

141 Record: Page 50 line 14 to page 52 line 16 (14/08/2019) 142 Record: Page 55 line 6 to page 76 line 13 (14/08/2019)

143 Record: Page 76 line 14 to page 83 line 7 (14/08/2019)

144 Record: Page 83 line 16 to page 85 line 1 (14/08/2019) 145 Record: Page 89 line 10 to page 94 line 2 (14/08/2019)

146 Record: Page 95 line 3 to page 98 line 19 (14/08/2019) 147 Record: Page 9 line 23 to page 12 line 15 (15/08/2019)

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554. Accused number 3 could not explain why someone would steal his phone, go

to his contact list and freely phone his friends and acquaintances without any

fear of being found out. 148 I seem to understand from accused number 3 that

the police are against him and want to see him in trouble. After accusing

Colonel Louwrens, Lekgotla, Ms du Plessis and the lead Prosecutor of

fabricating evidence against him, he extended the conspiracy against him to

the Crime Intelligence unit that allegedly kept him under surveillance and that

they must have stolen his phone.149 It was significant that accused number 4

who he alleged was also under surveillance, did not confirm the incident of

the cars being parked next to his yard at night as he alleged.

555. Accused number 3’s evidence that he was in the presence of accused

number 2 when the latter called the cell number 071 850 9434 on 17 August

2016 cannot be true because the cell phone of accused number 2 was

according to his cell phone data in the reception area of Groenwater at that

time. Accused number 3 was confronted with this fact in cross-examination

and dismissed the cell phone evidence as lacking reliability.150 This was

again to ward off evidence implicating him in the offence.

556. The evidence of Jacobus Koper and Denver Baaitjie did not take the matter

any further. 151 On the contrary Denver Baaitjie was accused of being an

unreliable witness during his evidence in chief.

557. I am satisfied that the State has succeeded to prove beyond reasonable

doubt that accused number 3 was part of the conspiracy to murder Baaitjie

and that he played an active role to ensure that the conspiracy was carried

out. His liability is based on the fact that he is a co-perpetrator, but also on

the basis of being part of the conspiracy or agreement to kill.

148 Record: Page 12 line 16 to page 14 line 8 (15/08/2019) 149 Record: Page 20 line 16 to page 22 line 16 (15/08/2019) 150 Record: Page 23 line 5 to page 27 line 11 (15/08/2019)

151 (Page 40 line 15 to page 48 line 12 (15/08/2019)) and Denver Baaitjie (page 52 line 11 to page 69 line 15 (15/08/2019)).

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THE CASE AGAINST ACCUSED 4

558. Mr Steynberg who appeared on behalf of accused number 4 submitted that

the State did not prove its case against his client beyond a reasonable doubt

and that his version is reasonably possibly true, entitling him to his acquittal

on all charges against him. He contended that Lekgotla did not proceed out

of his own accord to report the crimes to Colonel Louwrens. He knew he was

in a pickle and then obtained the services of an attorney. He did not report

the matter because he felt bad and wanted to play open cards. He firstly tried

to protect himself by lying to the police, and when backed into the corner, he

turned a section 204 witness, also to save himself.

559. It was further contended that his statement to the police was not

spontaneously made but was based on the cell phone data that Colonel

Louwrens had in his possession at the time; that his evidence that he met

accused number 4 on 3 September 2016 be rejected because there is no

handwriting expert evidence to prove accused number 4’s handwriting on

Exhibit UUA; that accused number 4 denied that he is the person depicted in

Exhibit WW and Lekgotla confirmed that the picture does not show the tattoo

that accused number 4 is having in his hand. It was further argued that the

evidence of identification of accused number 4 being in the Avanza by

Pamela Plaatje is of a single witness and is of such poor quality that it falls to

be rejected. It was lastly submitted that Lekgotla’s evidence has

improbabilities making it unclear and unsatisfactory.

560. The State’s evidence implicated accused number 4 through the evidence of

Lekgotla, Colonel Louwrens, call data and Pamela Plaatje.

561. Accused number 4 is the one who took the initiative to contact Lekgotla on

16 August 2016 to arrange transport for the “deal” to be done in

Postmasburg with a DA person. He spoke to Lekgotla several times during

the course of 17 August 2016. He brought the pistol which was used in the

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killings to the Jetta. He showed no surprise when he saw Nouse in the

company of Baaitjie in Postmasburg. The sight of Nouse did not divert him

from the plan to kill Baaitjie. He overruled accused number 2 when he

wanted Baaitjie killed at Kolomela Hub. The only reason that can be inferred

for his refusal is that the circumstances were not opportune for the attack. He

was not happy about the fact that accused number 2 had been drinking. He

killed Nouse without any hesitation, after the attention of both Baaitjie and

Nouse was diverted by accused number 1 and Lekgotla. He, with accused

number 2, caught Baaitjie, overpowered him and put him in the boot of the

Jetta. He fired two shots at Baaitjie after dropping the backrest of the

backseat of the Jetta. He alighted from the Jetta and assisted in dragging

Baaitjie from the tarred portion of the road. He administered the final

headshot to Baaitjie, considering that he boasted about that to Lekgotla the

next day. He also introduced Lekgotla to accused number 5 on 3 September

2016, with a view to assisting Lekgotla to get his money for the transport. He

advised him to put pressure on accused number 5 to pay for the transport

used to commit the offences and to threaten him that accused number 1 will

report the matter to the police if he does not pay. He facilitated payment of

the amount of R1000.00, connected to the crimes, to Lekgotla by accused

number 5.

562. Accused number 4 is a supporter of the political party (ANC) which contested

the seat that was won by Baaitjie and the DA. According to what is said in

the recording in Exhibit 10, the killing of Baaitjie would have benefited the

ANC. The person appearing on the still photo as per Exhibit WW bears a

striking similarity with accused number 4. It is save to conclude that it is him

regard being had to the fact that he was preferred by accused number 5 to

wash his motor vehicles; he is the only person that Lekgotla would approach

to pay for services rendered; he is the only person that would have

connected Lekgotla with accused number 5 and it is only him that Lekgotla

knew where he stayed. He is a known associate of accused numbers 2, 3

and 5. He admitted that he called the number of accused number 1 on 17

August 2016 and according to the cell phone billings there was a

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conversation following upon that call. He together with accused number 2

and 5 showed interest in the case by inter alia organising support for

accused number 3 by getting potential witnesses to falsely support his

defence of an alibi.

563. The evidence of accused number 4 was also riddled with inconsistencies,

improbabilities, contradictions and blatant lies. According to his own

evidence he is involved in illegal diamond dealing. He still wants to tell the

court that he respects the law.152 It is his version that he “knocked” Lekgotla

out of R10, 000.00 with an illegal diamond deal and that this is the reason

why Lekgotla gave false evidence against him. In fact, he even took this

further by saying that this trial would not have taken place if it was not for the

fact that he defrauded Lekgotla. It is his case that Lekgotla put the wheels in

motion which led to this trial as a result of the actions of accused number 4.

However, he was unable to explain how it then happens that accused

numbers 2, 3 and 5 were also involved. He was even less so able to explain

how come accused number 1 was involved.153 Further, why was accused

number 3 the first to be arrested, if the reason for false implication had to do

with his alleged illegal diamond deal story. Accused number 3 did not know

Lekgotla and had not met him before this ordeal.

564. In his evidence in chief, he testified that the “diamond knock” took place on

10 or 11 August 2016. However, his legal representative put it to Lekgotla

that accused number 4 could not remember the date.154 During cross-

examination by the State he could not explain how he was able to dupe

Lekgotla with a fake diamond.155 In attempting to deal with these questions,

he came up with new evidence that he bought a fake diamond from a certain

“Tshepo”.156 He testified that Lekgotla called him on either the 15th, the 16th

or the 17th of August 2016 for his money so that he could service his vehicle

152 Record: Page 24 line 20 to page 26 line 10 (19/08/2019) 153 Record: Page 26 line 12 to page 29 line 4 (19/08/2019) 154 Record: Page 29 line 17 to page 37 line 16 (19/08/2019)

155Record: Page 37 line 15 to page 40 line 8 (19/08/2019) 156 Record: Page 40 line 9 to page 41 line 22 (19/08/2019)

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to go to Pretoria. He said that he was unsure about the date. However, his

legal representative put the specific date of 16 August 2016 to Lekgotla when

Lekgotla testified.157

565. In his evidence he could not remember what he told Lekgotla during this

conversation. However, his legal representative put it to Lekgotla that

accused number 4 informed Lekgotla that he promised Lekgotla that he

would pay him and in so doing, tried “to keep his hopes up”.158 It is

improbable that he would make a debt with “Tshepo” without having had any

money to pay “Tshepo” back.159

566. He testified that he communicated with Lekgotla on 10 August 2016. He

mentioned that he used his phone, at times used friends and the neighbour’s

phone and at times the paid public phone. It was pointed out to him that

there was no reason for the communication on 10 August 2016 as the

diamond only arrived on 11 August 2016.160 When it was pointed out to him

that there was no communication between him and Lekgotla before 16

August 2016 according to the cell phone billing as per Exhibit R, he suddenly

came up with the evidence that Lekgotla had a fifth phone. This is something

which he conceded he never discussed with his legal representative.161 In

any event, it was never put to Lekgotla that several calls were made to

Lekgotla on 10, 11 and 13 August 2016.162 These answers can only confirm

that the diamond is fictitious.

567. The story of the diamond knock is something that was created to provide for

the reason why there was a sudden communication between accused

157 Record: Page 41 line 24 to page 45 line 2 (19/08/2019)

158 Record: Page 45 line 3 to page 47 line 8 (19/08/2019) 159 Record: Page 3 line 2 to page 4 line 2 (22/08/2019)

160 Record: Page 6 line 6 to page 14 line 3 (22/08/2019) 161Record: Page 11 line 9 to page 16 line 17 (22/08/2019).

162 Record: Page 16 line 18 to page 19 line 2 (22/08/2019)

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number 4 and Lekgotla. It was also intended to be used as a motive for false

implication. To give some credence to the diamond story, accused number 1

had to mention something about Lekgotla and illegal diamond dealing as

well. I say so because accused number 1 provided no reason why he had to

mention the diamond story and how was it relevant to this case especially

that, according to him, he returned the diamond to Lekgotla through his

girlfriend. The diamond story was not well planned by accused number 4. It

came as a surprise to him when the prosecution probed the story during

cross examination. Accused number 4 had to keep on developing the story

further in order to provide answers to the probing questions. There is for

example no reason why Tshepo was not introduced during cross-

examination of Lekgotla and in the evidence in chief of accused number 4.

The involvement of Tshepo in creating a fake diamond at a fee would have

made better sense if he was even called to testify.

568. Accused number 4 had to explain who he was speaking to in a

communication he had with a cell number of accused number 3 on 17

August 2016 at 13h35. He mentioned that someone just said “I am not

Magawu” and that he dropped the phone. It was pointed out to him that this

is not possible because the cell phone billing shows a conversation of 25

seconds.163 He could also not explain the communications with the same

number of accused number 3 during the evening of 15 August 2016.164

569. It was pointed out to him that according to the cell phone billing he was

called at more or less the same time by Lekgotla and accused number 2 in

the early evening of 17 August 2016. It was put to him that this ties in with

the evidence of Lekgotla that they were waiting for him at the crossing and

was delaying to come.165 He could give no explanation why he continued to

163 Record: Page 19 line 8 to page 22 line 24 (22/08/2019). 164 Record: Page 23 line 12 to page 29 line 25 (22/08/2019).

165 Record: Page 30 line 8 to page 33 line 2 (22/08/2019).

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answer calls from Lekgotla after the “diamond knock” and especially why he

called Lekgotla on 18 August 2016.166

570. It was pointed out to him that he must have called Lekgotla in the morning of

18 August 2016 from the handset of accused number 2 using the SIM card of

accused number 3. This was so because it was never disputed that he had

two communications with Lekgotla on 18 August 2016.167 He also contacted

Lekgotla on 19 August 2016. This could only have been to check on

Lekgotla’s whereabouts and possibly to inform him that the police were

looking for accused number 3.168

571. It is significant that accused number 4 changed his SIM card after the events.

He could give no reason for that.169 It is also surprising that accused number

4 “knocked” Lekgotla and out of nowhere went to the trouble to repay him.

The “knock” that he carefully executed had been successful and had

achieved his intention. If he intended to pay him back, why would he only

pay him a R1, 000.00 with no concrete arrangement for the payment of the

balance of R9 000.00 being made. This version was clearly designed to

provide an explanation for the fact that accused number 5 paid a R1, 000.00

to Lekgotla.170 It is improbable that Lekgotla would have been prepared to

receive only a R1, 000.00 and then had to wait for an unspecified time for the

outstanding R9, 000.00.171 It is also a coincidence that Lekgotla was

demanding a refund of R1, 000.00 and he received it from the people he

believed they owed him. One must also keep in mind the context in which the

payment of the R1, 000.00 was made in the recording between Lekgotla and

Mr X.

166 Record: Page 33 line 3 to page 35 line 2 (22/08/2019); Page 43 line 1 to page 44 line 18 (22/08/2019).

167 Record: Page 35 line 4 to page 42 line 24 (22/08/2019). 168 Record: Page 45 line 8 to page 48 line 20 (22/08/2019).

169 Record: Page 52 line 25 to page 55 line 20 (22/08/2019). 170 Record: Page 56 line 1 to page 58 line 6 (22/08/2019). 171 Record: Page 58 line 7 to page 60 line 10 (22/08/2019).

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572. Accused number 4 could not give an acceptable explanation for showing

Lekgotla his CCMA documents. This version was designed to provide an

explanation for the evidence of Lekgotla that he saw these documents at the

house of accused number 4 on 3 September 2016.172

573. He was not able to explain the fact that he was contacted from the number

062 370 0114 on 17 August 2016.173 The first call was for 33 seconds and

the second one for 18 seconds. He confirmed that accused number 3 never

asked him about these calls even after receiving his call data. He is sure that

it was not accused number 3 who called him, but at the same time he says it

happened a long time ago as such, he does not remember who called him,

be it the police or anybody else. This is another example of accused number

4 trying to protect accused number 3 at his personal risk.174

574. The video recording, Exhibit 10, transcript Exhibit XX and the still pictures

Exhibits VV and WW, confirms that accused number 4 met with Lekgotla on

3 September 2016. The fact that his new cell number appears on Exhibit

UU(a) further confirms this.175 His denial that he is not the person appearing

to be washing the Wildtrak is baseless. He has similar features as the person

depicted in the still picture.

575. The visit by Lekgotla is also confirmed by the fact that accused number 4

called accused number 5 more or less at the time when Lekgotla testified he

was in Danielskuil. Lekgotla’s version that the call was made to establish the

whereabouts of accused number 5 to facilitate payment of the money

promised is more plausible.

576. Accused number 4 was able to remember the contents of the conversation

he had with accused number 5, but when the prosecution asked about the

conversations he had with accused number 5 on 2 September 2016, he

172 Record: Page 60 line 11 to page 61 line 8 (22/08/2019).

173 Record: Page 62 line 23 to page 65 line 14 (22/08/2019).

174 Record: Page 65 line 15 to page 68 line 8 (22/08/2019). 175 Record: Page 68 line 9 to page 79 line 3 (22/08/2019).

235

could not remember it. This question was posed by the State to demonstrate

that accused number 4 fabricated the evidence as to what he and accused

number 5 discussed on 3 September 2016, because he could not disclose

to the court that accused number 5 was contacted to set up a meeting with

Lekgotla.176

577. Without any basis, accused number 4 also accused Colonel Louwrens of

fabricating evidence and alleged that Colonel Louwrens went through the cell

phone billing as per Exhibit QQ1 and told Lekgotla what to say. It was

pointed out to him that this cell phone billing was obtained years after

Lekgotla made his statement with regard to the events of 3 September

2016.177 Accused number 4 denied that he did volunteer work for the ANC.

This was never denied when Colonel Louwrens testified to this effect. This

sudden change of his version was designed to align himself with the

evidence of accused number 3. 178

578. His explanation for the communication between the cell numbers of accused

numbers 5 and 1 on 17 August 2016 was clearly false. He testified that he

immediately “dropped the call” when he heard it was Lekgotla who

answered. However, the cell phone billing shows a conversation of 69

seconds.179 He contradicts accused number 3 as to the alleged surveillance

done by Crime Intelligence.180 This aspect has been dealt with in more detail

in the analysis of accused number 3’s case.

579. It was pointed out to him that it would have been impossible for Lekgotla to

devise a plan to falsely incriminate him from 16 August 2016. Not

surprisingly, he could not respond to the logic of what was pointed out to

him.181 The version of accused number 4 as to the reason for Lekgotla lying

about his involvement is completely different to the reason advanced by

176 Record: Page 79 line 4 to page 83 line 24.

177 Record: Page 83 line 1 to page 84 line 25 (22/08/2019). 178 Record: Page 87 line 12 to page 90 line 6 (22/08/2019). 179 Record: Page 91 line to page 93 line 25 (22/08/2019). 180 Record: Page 94 line 1 to page 95 line 17 (22/08/2019). 181 Record: Page 95 line 22 to page 102 line 15 (22/08/2019).

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accused number 3 as discussed above. Their versions are irreconcilable and

mutually destructive.182

580. I am satisfied that the State has succeeded to prove the guilt of accused

number 4 on the charges against him beyond a reasonable doubt. His

liability is based on the fact that he is a perpetrator, and in addition on the

basis of being part of the conspiracy or agreement to kill. The evidence show

that the firearm and ammunition were in his physical detention.

THE CASE AGAINST ACCUSED 5

581. Ms Easthorpe on behalf of accused number 5 also submitted that the State

has failed to prove its case against his client beyond a reasonable doubt and

should be acquitted on all counts against him. She joined hands with the

other legal representatives that Lekgotla is a single witness and an

accomplice whose evidence is riddled with discrepancies; he must have

been aware that with the amount of money he was promised that he was

engaging in illegal activity; he wants the court to believe that he was

remorseful and yet he persisted in trying to obtain payment for his part in the

murders; he did not spontaneously approach the police but was approached

by the police and that he would have been shown cell phone records and in

order to exonerate himself, implicated accused number 5.

582. It was also contended that accused number 5’s version that he was in Lime

Acres and not in the immediate vicinity of the cell phone towers of

Groenwater and Papkuil on 17 August 2016 be accepted and that the

evidence of the experts, Golele and Heyneke cannot be safely relied upon.

She mentioned that they did not explain the capacity of towers to receive the

182 Record: Page 102 line 16 to page 103 line 21 (22/08/2019).

237

maximum number of calls and the implication thereof should there be a

higher number of calls received; and that they had no knowledge of what the

phenomenon of “ducting” meant and could not explain that to the Court.

583. Regarding the meeting of 3 September 2016 and recording as per Exhibit 9

she testified that accused number 5’s denial be accepted especially that the

recording was made from the cell phones of Lekgotla and not the device

provided by the police. She contended that the recording is a fabricated

evidence against accused number 5.

584. Lekgotla testified that he met accused number 5 on 3 September 2016 and

that they had a long conversation. The conversation was recorded as per

Exhibit 9 and a transcript of the conversation is before the court as Exhibit

XX. During this conversation the person said to be accused 5 not only

admitted knowledge of the killings of Baaitjie and Nouse, he confirmed that

he was part of the planning thereof. He confirmed that he even foresaw the

presence of a second person and that provision for this second person to be

killed be made so that there should not be an eye witness. He admitted that

his pistol was used to kill Baaitjie and Nouse. He promised to pay R20,

000.00 for the part Lekgotla and accused number 1 played. Put differently,

he financed the killings. He confirmed that Lekgotla was only there to provide

transport. He confirmed that Lekgotla sought cover after the first shot rang

out. He could only have received this information from accused numbers 2

and 4. He confirmed that he picked up the assassins at Groenwater. He paid

R1, 000.00 to Lekgotla on 23 August 2016. His vehicle was used to take the

pistol to the crossing. One of his vehicles was used to transport the shooter,

accused number 4, to the crossing. He drove past the house of Baaitjie on

17 August 2016. He was a senior member of the political party who

according to him stood to gain by the killing of Baaitjie. This is something he

explained to Lekgotla.

585. He is a known associate of accused numbers 2, 3 and 4. He summoned

accused numbers 2 and 3 from the house of Boitumelo Kaleche, in order for

238

them to meet with Lekgotla. This conclusion is not only based on his own

evidence and that of accused numbers 2 and 3, but also on the

circumstantial evidence presented by the state. The cell phone billing shows

that his cell phone was in the reception area of Groenwater at the same time

as the cell phone of accused number 2. He could only have gone there to

fetch accused numbers 2 and 4 who were left stranded with transport by

accused number 1 and Lekgotla. He wrote down his cell number on Exhibit

UU(a). Amongst the accused, he was the only person with the financial

means to pay R20, 000.00 to Lekgotla. This means that accused number 4

and 3 could not have offered to pay R20, 000.00 without him being part of

the arrangement.

586. Accused number 5 did not do well as a witness. He was evasive. Like his co-

accused, he resorted to allegations against the State which had no

foundation. He gave long speeches when short answers to simple questions

were required. His evidence is also riddled with inconsistencies,

improbabilities and contradictions. He confirmed that he was a senior

member of the Regional Executive Committee of the ANC and that the main

centre of the region is situated in Upington.183 He confirmed that he would

not have struggled to obtain R20, 000.00. He admitted that for him, it was

“like pocket money”.184

587. Colonel Louwrens testified that accused number 5 was not a suspect during

the early hours of 19 August 2016. This evidence was undisputed. However,

during the bail application, accused number 5, falsely and under oath,

asserted that he was arrested by Colonel Louwrens on 19 August 2016 and

released later. When confronted with this serious contradiction, he blamed

his former legal representative, Adv. Nel who told him that once he is being

questioned by the police he is under arrest..185 He confirmed that the Ford

Ranger Wildtrak was not in the possession of the police on 3 September

183 Record: Page 63 line 23 to page 65 line 25 (27/08/2019). 184 Record: Page 66 lines 1 – 22 (27/08/2019). 185 Record: Page 69 line 14 to page 74 line 8 (27/08/2019).

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2016 making room that it could have been at accused number 4’s place for

washing.186

588. He suddenly disputed that he provided Colonel Louwrens with the

information contained in pages 34 and 35 of Exhibit R. He gave long, but

unconvincing explanations for this. It is important to note that the evidence of

Colonel Louwrens as to the contents of this statement was never disputed. It

is further important to note that accused number 5 on 19 August 2016

confirmed that accused number 3 still made use of the cell number 082 667

6133. This is fatal for the case of accused number 3. Accused number 5 had

to disown this statement so as to protect accused number 3. His efforts to do

so, were unimpressive and unconvincing which says much about his own

credibility as a witness.187 Following upon this, he refused to give a straight

answer on whether he spoke with accused 3 on the cell number 082 667

6133 on 17 August 2016.188 At one stage he admitted that he told Colonel

Louwrens that accused number 3 picked up the call made on 17 August

2106 lasting 72 seconds.189 He later changed that he never told him that;

later, he said Colonel Louwrens suggested that or took it from the call

register of his phone and did not dispute it. These conflicting versions show

how he tried to conceal the truth. He was placed in this predicament among

others, by what accused number 3 said, namely that accused number 5 told

him “that Colonel Louwrens wrote that statement himself and took his

phone.”

589. It was pointed out to him that he had several conversations with accused

number 3’s cell number 082 667 6133 on 16 and 17 August 2016. He said

that it was someone other than accused number 3, but he never discussed

this with accused number 3.190 This is so improbable in the context of this

case, that it cannot be true. At some stage he mentioned that he can’t

186 Record: Page 74 line 17 to page 75 line 2 (27/08/2019). 187 Record: Page 78 line 8 to page 90 line 2 (27/08/2019); Page 2 line 2 to page 8 line 14 (28/08/2019).

188 Record: Page 8 line 13 to page 14 line 14 (28/08/2019) 189 Record: page 88 line 3 to 15 (27/08/2019) 190 Record: Page 14 line 15 to page 23 line 8 (28/08/2019)

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remember who he spoke to meaning that he does not exclude accused

number 3. He tried by all means to suggest that he at no stage volunteered

incriminating evidence against accused number 3 but that it was information

taken by Colonel Louwrens as he scrolled his phone and put it in the

statement. This is despite the fact that he personally read the statement and

signed it. Given his level of experience in life, the manner in which he spoke

to his employees in Exhibit XX and the way he performed in Court, he is not

the type of person who would accept or sign a statement he does not agree

with. His attitude of avoiding to admit that he spoke to accused number 3

on17 August 2016, goes against his evidence that because of his friendship

and association with his co-accused excluding accused number 1, they often

communicated telephonically and that there is nothing wrong with that. It

should have been easy for him to slot this communication within those, rather

than deny it, obviously to protect accused number 3.

590. He confirmed that he still relied on public contracts and that the last contract

he received from Kgatelopele Municipality was in 2012.191 This confirmation

contradicts his evidence that public contracts were not important to him and

he made his money from private contracts only. He confirmed that the route

from Danielskuil to Groenwater would be to pass Owendale and not to drive

through Lime Acres.192

591. It was pointed out to him that the cell phone billing supports the information

as it appears on pages 11 and 12 of recording 10 of Exhibit XX (where he

said he went to Groenwater). He could not provide any explanation for

this.193 Ms Easthorpe tried to create doubt that it is not the closest tower with

the strongest signal that would service a cell phone device. She referred to

articles by authors and referred to the phenomenon of “ducting”. The expert

witnesses, namely Ms Heynecke and Golele explained how the towers are

set up in South Africa which is inter alia that the nearest tower should be the

191 Record: Page 24 line 3 to page 26 line 20 (28/08/2019) 192 Record: Page 26 line 25 to page 27 line 23 (28/08/2019). 193 Record: Page 28 line 3 to page 30 line 14 (28/08/2019).

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one with the strongest signal to service a device. The articles they were

asked about were never placed before them to read and even understand

the context they referred to. Their evidence on this aspect is unchallenged

and is satisfactory. It is also supported by the objective facts on the specific

instances of this case. There is no basis for speculation on even

unsubstantiated hypothetical scenarios.

592. The State contended that it is improbable that he would pick up three

workers at the mine in Lime Acres with a small Golf vehicle when there are

already two adult passengers in the Golf.194 This contention has merit when

one considers the evidence supporting the version that accused number 5

went to Groenwater and not Lime Acres.

593. Accused number 5’s reason for the sudden and frequent telephonic contact

between himself and Accused 2 on 17 August 2016 does not make sense.

He testified that they had to arrange people for induction training the

following morning. He could not explain why they waited until the night before

the training to recruit people. He could not explain why they recruited people

drinking alcohol at taverns while breathalyser tests were to be conducted for

entry at the training. His explanation was that it is not everyone who goes to

a tavern who consumes alcohol and is unconvincing. It was also pointed out

to him that according to accused number 2, the training never took place.195 I

have already referred to the poor quality of accused number 2’s evidence in

trying to factor in the reason for these sudden calls between him and

accused number 5. It suffices at this stage to mention that if indeed accused

number 5 requested accused number 2 to organise more people for the

training, one would have expected accused number 2 to be the one calling

him only after he has rounded the people he was recruiting and not for

accused number 5 to phone him several times at such short intervals and not

giving him the freedom and time to recruit. There would not have been

anything to report at that stage since accused number 2 was to start

194 Record: Page 34 line 9 to page 35 line 2 (28/08/2019)

195 Record: Page 35 line 9 to page 43 line 14 (28/08/2019).

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recruiting people. As I have indicated, this is a weak attempt to justify these

calls against the strong evidence presented by the cell phone call data that

he went to Groenwater to fetch accused number 2 and 4. The only

reasonable inference is that the calls were made to establish the exact place

in Groenwater where accused number 2 and 4 were, to assist them.

594. It was interesting to hear accused number 5’s response when he was

pressed in cross-examination about his unsatisfactory evidence on the

training. He urged the lead prosecutor not to insist on ‘milking a cow that has

run out of milk as it would ultimately bleed” and that he stands by his

previous answer.196

595. The recording as per Exhibit 9 was played in open court. Although accused

number 5 denied his presence, the voice of Mr X is clearly recognisable as

his voice.197 The vehicle as per Exhibit VV can only be his Ford Ranger

Wildtrak.198 The evidence tendered already is that accused number 4 was a

preferred person to wash his cars and for the van to be there was nothing

unusual.

596. His handwriting on Exhibit UU(a) conclusively confirms that he met Lekgotla

on 3 September 2016. He was given the opportunity to provide an

explanation for this compelling evidence against him, but failed dismally to

explain it.199

597. An audio recording is real evidence to which the rules of evidence relating to

documents are applicable.200 The authenticity of an audio recording is a

matter of trustworthiness and weight. The evidence of an audio recording

196 Record: Page 43 lines 15 to 20 (28/08/2019). 197 Record: Page 49 lines 11 – 21 (28/08/2019).

198 Record: Page 49 line 24 to page 52 line 3 (28/08/2019)

199 Record: Page 52 line 15 to page 56 line 1 (28/08/2019).

200 S v Baleka and others (1) 1986 (4) SA 192 (T) at 199 F – G.

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can be gainsaid by presenting evidence to cast doubt on its authenticity and

veracity.201 The main criticism against the audio recording is why Lekgotla

used his cell phones and not the device provided by the police. Lekgotla

explained that it was difficult to use the device which was attached to his

motor vehicle keys; that pointing the device at the accused would have

placed his life in danger. The criticism that Van der Merwe should have been

called by the State to testify about the device is without merit. Van der Merwe

would not have advanced this anywhere as he was not present when the

recording was made. He could only have confirmed that Lekgotla went to

Danielskuil on that day. This aspect is not in dispute. What is disputed is that

he met accused numbers 2, 4 and 5 on 3 September 2016. It is therefore a

matter of credibility among the role players.

598. The detail which appears in Exhibit XX could only have come from accused

number 5 and that the detail confirms the meeting between him and Lekgotla

on 3 September 2016. Some of the details pointing at him being Mr X are the

following:202

a. The fact that he is a contractor (page 56 lines 2 – 5).

b. The fact that he was in regular contact with leaders of the ANC (page

56 line 6 -17)

c. The fact that he transported members of the public as well as workers

from the mine (page 56 line 19 to page 57 line 16)

d. The fact that “Oom Abel” worked for him (page 57 lines 17 – 19)

201 S v Baleka and others (supra) at 194 D; S v Baleka and others (3) 1986 (4) SA 1005 (T) at 1023 F –

I; See also: S v Nieuwoudt 1990 (4) SA 217 (A); Motata v Nair NO and another 2009 (1) SACR 263 (T).

202 The references are to the pages in Exhibit XX.

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e. The fact that “Bra Shorty” is someone he knows (page 57 lines 20 –

23).

f. The fact that the person travelled with Lekgotla to one of his employees

to specifically arrange transport which was requested from accused

number 5.

g. The fact that the mines pay salaries on the 7th and 8th of each month

(page 57 line 24 to page 58 line 9)

h. The fact that reference was made to the allegation that the State

prevented accused number 3 from calling witnesses in his bail

application (page 58 lines 10 – 24)

i. The fact that he had knowledge of the house breaking case against

accused numbers 3 and 4 and that this case led to accused number 4

encountering some problems at his workplace (page 58 line 25 to page

59 line 7)

j. The fact that his drivers were used on different shifts (page 58 line 8 to

page 60 line 15)

k. The fact that he was the owner of cattle and goats (page 61 line 3 to 6).

599. In addition, the fact that accused number 5 towards the end of his evidence

alluded to the fact that accused number 4 worked at an “other place” and

whatever he has learned he must have learned there. This corresponds with

what is to be found in Exhibit XX where it was said that accused number 4

“learned a lot” while he was in Pretoria (page 79 line 23 to page 80 line 14)

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600. The fact that the person confirms that Lekgotla has his cell phone number

and should get it from the e-wallet transaction that he sent him the amount of

R1000.00 with. This is a factually correct statement which is admitted by

accused number 5.

601. He also “could not remember” who called him from the cell number 062 370

0114 on 17 August 2016. This was the first time the number called him.203

He confirmed that he is a leader figure amongst accused numbers 2, 3 and 4

in terms of his age, his financial status and his political position.204

602. The onus of proving the admissibility of evidence obtained by a trap rests

upon the State.205 Evidence obtained as a result of a trap shall be admissible

if the conduct of the trap does not go beyond providing an opportunity to

commit an offence. Even where the conduct goes beyond providing such an

opportunity, the court still has the discretion to admit the evidence so

obtained. 206 The burden of proof resting upon the State is beyond

reasonable doubt and not only on the balance of probabilities.207

603. The accused shall furnish the grounds on which the admissibility of the

evidence is challenged. 208 The court has a judicial discretion on whether to

try the admissibility of trap evidence as a separate issue.209 I have already

recorded that the only challenge to the evidence of the recording and the trap

is the denial by accused number 5 that he is the person who met Lekgotla

and that he had any conversation with him. Other than to say that the

recording is a fabrication and it is not accused number 5 in the recording,

there are no claims or a suggestion that it has been interfered with. There is

203 Record: Page 67 line 16 to page 68 line 19 (28/08/2019). 204 Record: Page 70 line 2 to page 74 line 17 (28/08/2019)

205 Sec 252A (6) of Act 51 of 1977. 206 Section 252A (1) and (3) of Act 51 of 1977.

207 S v Kotze 2010 (1) SACR 100 (SCA) at 111 g; S v Naidoo 2010 (1) SACR 369 (KZP) at 371 e – 372 f (this is footnote 16).

208 S v Kotze (supra) at 110 g – 111 c.

209 S v Matsabu 2009 (1) SACR 513 (SCA) at paragraphs 8 and 9

246

no other basis placed on record for the Court to investigate the authenticity of

the tape recording and whether it should be excluded as evidence. It is only

the version of the State presented which is not challenged, save for the

person in it.

604. I therefore come to the conclusion that the State has proved beyond

reasonable doubt that the person, Mr X is accused number 5.

605. The evidence of the two witnesses, Vicky Olyn and Phenyo Legodu, called

on behalf of accused number 5, did not take his case any further. Olyn

conceded that he was not involved in the arrangements for the training and

cannot confirm if it took place or not. His son, Phenyo could not remember

when he handed his Golf motor vehicle to his father. Even if it could be on

the 17 August 2016 he does not know what happened there after.

606. In the result I find that the state has proved its case against accused number

5 beyond a reasonable doubt only on the first and second counts. His liability

lies as a co-perpetrator, but also as being part of the conspiracy or

agreement to kill.

Verdict.

A. Accused number 1: Richard Hasane

a) Count 1: Murder of Johannes Baaitjie: GUILTY as charged.

b) Count 2: Murder of Shuping Jeffrey Nouse: GUILTY as charged.

c) Count 3: Kidnapping: Not Guilty.

d) Count 4: Possession of a Firearm: Not Guilty.

e) Count 5: Possession of Ammunition: Not Guilty.

B. Accused number 2: Tshame Frank Baxane

a) Count 1: Murder of Johannes Baaitjie: GUILTY as charged.

b) Count 2: Murder of Shuping Jeffrey Nouse: GUILTY as charged.

c) Count 3: Kidnapping: Not Guilty.

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d) Count 4: Possession of a Firearm: Guilty.

e) Count 5: Possession of Ammunition: Guilty.

C. Accused number 3: Zonizelo Richard Magawu

a) Count 1: Murder of Johannes Baaitjie: GUILTY as charged.

b) Count 2: Murder of Shuping Jeffrey Nouse: GUILTY as charged.

c) Count 3: Kidnapping: Not Guilty.

d) Count 4: Possession of a Firearm: Not Guilty.

e) Count 5: Possession of Ammunition: Not Guilty.

D. Accused number 4: Thompson Mncedisi Mphondomisa

a) Count 1: Murder of Johannes Baaitjie: GUILTY as charged.

b) Count 2: Murder of Shuping Jeffrey Nouse: GUILTY as charged.

c) Count 3: Kidnapping: Not Guilty.

d) Count 4: Possession of a Firearm: Guilty.

e) Count 5: Possession of Ammunition: Guilty.

E. Accused number 5: Mattheuws Legodu

a) Count 1: Murder of Johannes Baaitjie: GUILTY as charged.

b) Count 2: Murder of Shuping Jeffrey Nouse: GUILTY as charged.

c) Count 3: Kidnapping: Not Guilty.

d) Count 4: Possession of a Firearm: Not Guilty.

e) Count 5: Possession of Ammunition: Not Guilty.

__________________

L.P TLALETSI

JUDGE PRESIDENT

Northern Cape Division, Kimberley

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On behalf of the State: Adv J.J CLOETE (DPP Northern Cape)

Assisted by: Adv. K. ILANGA

On behalf of Accused 1: Adv W. Ells (Legal Aid SA)

On behalf of Accused 2: Adv. L. Setouto (Legal Aid SA)

On behalf of Accused 3: Adv. Buthelezi (Legal Aid SA)

From ---- Adv. Moroke (Legal Aid SA)

On behalf of Accused 4: Adv. H Steynberg (Legal Aid SA)

On behalf of Accused 5: Ms. S Easthorpe (Legal Aid SA)