S v Bezuidenhout (CC10/2023) [2024] ZAWCHC 345 (4 October 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Western Cape High Court, Cape Town South Africa: Western Cape High Court, Cape Town You are here: SAFLII >> Databases >> South Africa: Western Cape High Court, Cape Town >> 2024 >> [2024] ZAWCHC 345 | Noteup | LawCite sino index ## S v Bezuidenhout (CC10/2023) [2024] ZAWCHC 345 (4 October 2024) S v Bezuidenhout (CC10/2023) [2024] ZAWCHC 345 (4 October 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAWCHC/Data/2024_345.html sino date 4 October 2024 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 EASTERN CIRCUIT COURT LOCAL DIVISION, KNYSNA CASE NO : CC10/2023 DATE : 2024.10.03 In the matter between THE STATE and WAYDON BEZUIDENHOUT                                          Accused JUDGMENT GAMBLE, J : INTRODUCTION [1]  The late Mr G[…] M[…] K[...] was a popular face in tourism circles in Knysna. He was the proprietor of W[...] Tours and Stay and specialised in township tourism in the area. He resided at 1[…] M[…] Street, Khayalethu where he ran a successful bed and breakfast establishment which attracted both local and foreign visitors. I shall hereinafter refer to Mr K[...] as "the deceased". [2]  Shortly before 18:00 on the early evening of Monday, 17 January 2022, the body of the deceased was discovered in a forest to the north of Khayalethu, a suburb on the northern side of the town of Knysna. The local police were called to the scene and the deceased’s body was taken away for later post-mortem examination after he had been provisionally identified on the scene. [3]  Within a few days after the murder of the deceased, the accused, Mr Waydon Bezuidenhout, was in the crosshairs of the police as he was alleged to have been the last person to be seen in the company of the deceased on the night of January 15, 2022. However, he was not arrested immediately because the police were busy with various forensic investigations, including DNA testing, vehicle tracking assessment and the evaluation of cell phone records. Once the forensic results had been received, it was established that the blood of the deceased had been present in the boot of the hired vehicle used by the accused at the time. [4]  The accused was arrested at his office in Knysna on 25 August 2022 and charged in connection with the disappearance and the murder of the deceased. He subsequently appeared before this Court sitting on circuit in Knysna on 19 August 2024 on charges of kidnapping, murder and defeating or obstructing the administration of justice. He pleaded not guilty to all charges and elected not to immediately disclose the basis of his defence. [5]  The State is represented in this matter by Adv L Badenhorst of the office of the Director of Public Prosecutions in Cape Town and the accused by Ms Luterek, an attorney of Mossel Bay, who is instructed by Legal Aid South Africa. The Court would like to thank both legal representatives for the very professional and thorough manner in which this trial has been conducted. Their assistance in this matter has greatly contributed to the smooth and efficient completion of proceedings. The Court would also like to thank the court staff from Cape Town who have assisted with the smooth running of the circuit and the court staff and police officers here who have been of great assistance too in that regard. GENERAL OVERVIEW [6]  Immediately after tendering his plea, the accused made extensive admissions which are contained in EXHIBIT B and Ms Luterek handed these up to the Court at the start of proceedings. She indicated that the accused's defence would emerge during the cross-examination of the State witnesses, as it did, and will appear more fully later. That defence underwent a metamorphosis during the trial. At the outset and by way of general overview, it must be noted that notwithstanding the extensive admissions made in EXHIBIT B, the accused initially put up an exculpatory defence and denied any involvement in the offence. [7]  The State’s case consisted of a welter of circumstantial evidence and as that evidence emerged, the accused’s response shifted seemingly to counter the incriminating evidence. At the close of the State case, the accused asked for an order that he could testify in camera . In a short affidavit in support of this rather unusual application, the accused said he wanted to take the Court into his confidence and spill the beans. He feared dire consequences for himself and his family if this evidence was given in open court, because the people he claimed he would implicate, were violent; hence his request for an in-camera hearing. The application was granted and the accused thereafter testified. [8]  The version deposed to by the accused in the witness box was entirely at odds with the case put to the State witnesses and was essentially exculpatory, with the accused electing to heap the blame on others. He also called two witnesses whose evidence was given in open court. A large amount of documentary evidence has been placed before the Court, little which was disputed and the Court has heard the testimony of 54 witnesses This judgment will deal with the evidence put up by the State and the accused’s initial response thereto. Thereafter I will deal with the defence case. [9] The circuit did not finish within the allocated time and it was necessary for the Court to reconvene after a short break to complete the evidence, hear argument and deliver this judgment. In the interests of bringing proceedings to a timely conclusion, this judgment will not traverse the evidence of each witness in detail. That is all a matter of record. Rather, I intend to follow a chronological narrative of the material events with reference to the various state witnesses and the documentary evidence where appropriate. I shall commence by giving some background to the various persons involved in this matter, the deceased and his family. THE DECEASED AND HIS FAMILY [10]  The deceased was born in 1975 in Nylstroom, Oudtshoorn. There he met the woman whom he would later marry, Ms C[…] P[…] K[…]. For the sake of convenience and with no disrespect, I shall refer to her as "P[...]", for this is how many of the witnesses refer to her. [11]  The deceased and P[...] had three children, the eldest after whom the business was named, is W[...] K[…] (W[...]) who turned 18 a couple of weeks back and who is in his matric year at O[…] College, an independent school here in Knysna. The second son is W[...]K[…] (C[...]), who is now 16 and in grade 10 at O[…] and the youngest child is W[...] K[…] (U[...]) who is 12 and in grade 6 at O[…]. [12]  In 2017, the deceased and P[...] separated whereafter she moved out of the home and stayed in a different part of Knysna while their children stayed on with their father. At the time, P[...] was employed in the HR Department of the SAPS in Knysna and hence was known to many of the police officers who testified in the case. [13]  In March 2020 with the Covid lockdown imminent, P[...] resigned from the police and moved to Oudtshoorn to take care of her ailing mother who died shortly thereafter. The children accompanied their mother to Oudtshoorn and did their schooling on-line until the schools reopened and they could return to Oakhill and resumed living with their father. [14]  P[...] then took up employment with Sanlam in George as a financial advisor. She enjoyed regular contact with her children over weekends and school holidays. After the untimely death of the deceased, P[...] moved back into the house to look after the children while continuing to work for Sanlam. [15]  Two of the children, U[...] and W[...], gave evidence in this matter through a video facility at the Plettenberg Bay magistrate’s court, and the Court was able to assess them at close quarters. The Court would like to compliment parents for the outstanding job they have done in raising their children. Both U[...] and W[...] are intelligent, eloquent, friendly and personable young people who were able to articulate themselves clearly and emphatically in their evidence which was undoubtedly a painful and traumatic experience for them. I daresay that everyone in the court room was impressed with the K[…] children and I shall return to their evidence later in the judgment. THE ACCUSED [16]  The accused, Mr Waydon Bezuidenhout, was born in 1990 and was schooled here in Knysna. In his day, the accused played professional football and comes from a family with a history of involvement in the funeral business. [17]  He is married to Ms Virginique Cassandra Bezuidenhout and has a son presently aged 5. He has four other children by different mothers. [18]  At the time of his arrest, the accused was the sole proprietor of a funeral undertaking concern called Cassandra Funerals which had an office in Knysna’s Main Road. The office was used for the purpose of seeing clients and the storage of funeral equipment while the accused made use of mortuary premises in Knysna’s industrial area for the preservation of bodies and the preparation thereof for burial. [19]  The accused did not own a hearse or other motor vehicle at the time of the events relevant to this case. It was his practice to rent suitable vehicles for funerals as the need arose. He had the necessary equipment for the conducting of funerals, including an awning for graveside shade and chairs for mourners. His permanent staff was limited to an office receptionist and he made use of casual workers over weekends to officiate at funerals. His wife also helped out in the business from time to time. [20]  The accused stayed just a couple of hundred metres up the road from the deceased at 4[…] M[…] Street and he and the deceased had been friends for about two years before the latter’s demise. They had no particular common interests and while the deceased was the accused’s senior by some 12 years, both men drank together regularly, and according to the accused, they were “drinking buddies”. The accused confirmed that even though he lived close to the deceased’s home, he stayed over at the BnB as a paying guest on occasion. During such days, the accused was not accompanied by his wife. DISCOVERY OF THE BODY [21]  Shortly before 18:00 on Monday, 17 January 2022, an off-duty uniformed policeman from Knysna, Sergeant Mfundo Matshaya, went out in his bakkie to check up on his herd of cattle which he said grazed in the veld to the north of Concordia which is also one of the suburbs on the northern edge of the town. He was driving along a gravel road running between the Simola Golf Estate to the west and the R339 tar road to Uniondale in the east. The witnesses referred in evidence to this as the Bokkoppie road. The R339 winds it is way northwards from the intersection of the N2 and is a major thoroughfare in the township. [22]   Sergeant Matshaya said he stopped his bakkie a couple of hundred metres before the junction of the Bokkoppie Road with the R339 and got out to look for his livestock. He was in the middle of a commercial pine plantation and walked around to the left of his bakkie to look down a slight incline in search of his cattle. [23]  To his surprise, he saw a body lying about 10 metres away in the forest at the foot of a large pine tree. It is common cause that this was the deceased. The sergeant was shocked and he immediately called the Knysna police station to report his find. He also posted a voice note on the local police WhatsApp group, alerting his colleagues to the situation. [24]  He remained on the scene until two duty patrol officers, Sergeant Juan Smit and Sergeant Barend Ackerman arrived whereafter he departed the scene. Both Smit and Ackerman explained how they cordoned off the area with police barrier tape and awaited the arrival of the duty detective, Sergeant Vusumzi Xokozela. [25]  Later, Lieutenant-Colonel Muhamed Khan, the head of the Knysna Detective Unit, was also on the scene. The following day, the colonel appointed Xokozela as the investigating officer in the matter. [26]  A standby forensic examiner from the Local Criminal Record Centre (LCRC) in George, Warrant Officer Corné Stander, arrived at around 20:00, took control of the scene and set up flood lights before going about his work. He recorded his main observations photographically in EXHIBIT D. [27]  Stander observed that the deceased’s hands were tied behind his back with cord and that his ankles were bound with a pinkish coloured material. They were not tightly bound, suggesting that the deceased might have been able to walk albeit with difficulty. The deceased was wearing knee-length dark pants and a white vest which was bloodied in the area of the right shoulder. His head was covered with a black plastic refuse bag. [28]  When the mortuary staff later lifted the bag on the scene for the purposes of in loco photographs, it could be seen that the deceased had been severely beaten about the head and mouth, he had been strangled with a white shoelace and suffocated with a similar piece of pink material that was used to tie his legs. The material had been stuffed into his mouth and bound tight with black insulation tape. It has to be said that the images of the deceased’s body are amongst the most gruesome that this Court has seen in more than 14 years of the Bench. [29]  The deceased’s body was later removed to the police mortuary in Knysna where it was identified the following morning by P[...]. Thereafter, the body was taken through to George where it was examined by a forensic pathologist in the person of Dr Mariette Hurst. She told the Court that she has more than 30 years experience in her profession and confirmed that this was one of the more serious cases that she had witnessed. [30]  Dr Hurst testified that she held the view that the cause of death was a combination of strangulation, smothering and blunt force trauma. There were five blows to the head, one of which was severe enough to cause a fracture of the scull and would most likely have rendered the deceased unconscious. The ligature around his throat blocked his airway as did the wad of cloth stuffed deep into his mouth. [31]  The blows to the head had resulted in bleeding which suggested that the deceased was still alive when he was beaten. The doctor said that it was probable that he lost consciousness and thereafter died as a consequence of a lack of oxygen, either from the ligature around the neck or the cloth stuffed into his mouth, or both. [32]  The pathologist described the pink wad of cloth used to choke the deceased and bind his legs as being similar to T-shirt material. It was later established that the deceased’s blood alcohol level indicated that he had consumed a limited amount of liquor. His blood alcohol was measured at 0,04 grams per 100 millilitres and was at a level which would render him just liable to be prosecuted for drunken driving. THE FACTUAL ISSUES FOR DETERMINATION [33]  The discovery of the body poses the following primary factual issues for determination of the accused’s guilt in this case: (1)  How did the body arrive at such a remote location in the forest? For convenience, I shall refer to this as "the body scene". (2)  How and by whom was the body conveyed to the body scene? (3)  Was the deceased fatally assaulted at the body scene or elsewhere? (4)  By whom was he assaulted? (5)  Did that assault cause his death? CONVEYANCE TO THE BODY SCENE [34]  By the conclusion of the evidence for the defence, it was common cause that the deceased was transported to the body scene in a silver Nissan X-Trail SUV with registration number G[…]. The vehicle had been rented by the accused from Thrifty Car Rental at George Airport on the afternoon of Friday, 14 January 2022 and was intended to be used to transport mourners to a funeral which Cassandra Funerals conducted on the morning of Saturday, 15 January 2022 at The Crags near Plettenberg Bay to which I shall hereinafter refer to as "Plett". [35]  The State contends that accused drove the X-Trail to the body scene while the accused says he was a passenger in the vehicle which was being driven by an acquaintance. The determination of the remaining issues referred to earlier, will be dealt with as this judgment progresses. I shall now deal chronologically with some of the more important facts as they were established during the trial. THE NIGHT OF FRIDAY, 14 JANUARY 2022 [36]  The only fact of relevance here, is that the accused did not sleep at his home in Mbetane Street on the night in question, rather he drove the X-Trail to the accused’s house and parked it in the driveway. [37]  The bed and breakfast accommodation at the deceased’s home was constructed on a second storey above the main part of the dwelling house, it was accessed by an external wooden staircase. Apart from two en-suite bedrooms, there was an area where meals were served which I shall call the breakfast area. The K[…] family lived downstairs in a comfortable house consisting of two bedrooms, two bathrooms, a laundry, kitchen and a spacious lounge come dining room. [38]  That night, says the accused, he and the deceased and another man and a woman, sat around drinking in the breakfast area as was their custom. The accused says that as the evening progressed, everyone became intoxicated. He claims that the deceased asked him if he could use the X-Trail to give the other two friends a lift home. He says he agreed. The accused later went to sleep in one of the bedrooms. He says that he stayed over alone that night. THE MORNING OF SATURDAY, 15 JANUARY 2022 [39]  The fact that the accused stayed over at the deceased’s house on the Friday night is confirmed by the evidence of two casual workers whom he employed to assist with the conducting of the funeral at The Crags on the Saturday morning. They were Patrick Pietersen and Duwayne Heils. [40]  The two men arrived at the accused home around 6.00 in the morning and were informed that he was not home. Heils says that he spoke to the accused’s wife who suggested that they should look for him at the deceased’s house which was just a short distance away. Pietersen on the other hand, told the Court that he spoke to the accused’s father who said that his son was not home and that he did not know where he was. [41]  Pietersen called the accused several times on the number 0[…] but his calls went unanswered. He then called the accused’s wife on the number 0[…] and she told him to go and look for the accused at the deceased’s place. For the sake of convenience, when repeating telephone numbers, I shall henceforth refer to the last 4 digits only. [42]  It seems to me that the evidence of Pietersen is more probable on this score. It is unlikely that he would call the accused’s wife if she was at home as Heils suggested. Furthermore, during the cross-examination of Ruwayne Ennes, who testified on the second day of the trial, Ms Luterek put the accused’s version to him. This included an allegation that the accused’s wife was not home on the Friday night but staying with her ailing grandmother in Hornlee. This too, was the version of the accused’s wife. [43]  At the time, Pietersen was driving a silver Ford Territory SUV which the accused had hired earlier in the week from a woman in the neighbourhood known as Ms Nomachina Makwela, but whom everybody calls Mamma China. The Ford was to be used as a hearse that day. The coffin containing the person to be buried was already in the back of the vehicle having been collected from the mortuary en route to the accused’s house. The purpose of the visit to the accused’s house was to collect the X-Trail which Heils was to drive through to The Crags and then convey the mourners to the graveside. [44]  When they discovered that the accused was not home, they eventually drove the short distance down the road to the house of the deceased where the X-Trail was parked. Heils went upstairs to the BnB to collect the keys from the accused. He confirmed that the accused was sleeping there and when he asked for the keys to the vehicle, he was told to go downstairs and collect it. This he did and drove off in the X-Trail in the direction of The Crags. [45]  A little while later, the accused left the house on foot, accompanied by the deceased. U[...] and W[...] confirmed in their evidence that they were told by their father that he was going to a funeral and saw the two men leaving the house. U[...] said that the deceased was wearing a peach-coloured T-shirt, jeans and slip slops and carried a pair of trainers in his hands. They both said that they found this odd as he normally dressed smartly in a suit when going to a funeral. [46]  Mamma China confirmed in her evidence that the accused arrived at her house early on the Saturday morning and asked to borrow her black Mazda to go through to The Crags. She agreed. Mamma China said she also saw the deceased who was wearing a pinkish coloured shirt outside the house. The accused and the deceased then drove off in the black Mazda through to The Crags where he later met up with Pietersen and Heils. This was confirmed by Heils who said that they had forgotten to collect seat covers and an awning at the office and that the accused had collected these and brought them through to the cemetery. [47]  Heils said that he saw the deceased sitting in the company of the accused near the grave and that this is the first time he had encountered the deceased. Heils stated that the accused and the deceased departed the scene in the black Mazda after Mamma China had phoned and told the accused she needed the car. The cell phone record shows some four calls from her to the accused that morning. [48]  The accused then drove back to Knysna with the deceased. He says that he dropped the deceased off around midday near a tavern known as Magadla’s and then went on to Mamma China’s house in Dam se Bos to drop off the Mazda. [49]  Mamma China whose cell phone number is 0[…], told the Court that she knew the accused as "Kataza" and had saved his name as such on her phone. She had had regular dealings with him over a period of seven to eight months when he rented vehicles from her for funerals. Her main source of income is a catering business and she also transports children to school. She said she knew the deceased because they were once members of the same church. She also knew P[...] as a fellow congregant at her new church at the F[…] M[…]. [50]  Mamma China said that on the Saturday afternoon, there was a homecoming ceremony for a young man who had returned from initiation school which was to be held at the house of a certain Mavusi Mbongane. She was involved in the celebrations and asked the accused to help her transport a stretch tent and chairs to Mavusi’s place. The accused obliged and they drove up to Mavusi’s house together where the tent was dropped off. The chairs had to be collected at a hall and the accused went off in the Mazda to collect them. It took some time collecting the chairs and eventually a man called Whitey, arrived with the chairs on the back of his bakkie. The accused had disappeared. [51]  When the accused eventually returned in the Mazda, Whitey pointed out that the front bumper of the car was loose. The accused undertook to take the car down to the area known as "Sanlam" to have it repaired. Sanlam, as I understand it, is close to the taxi rank at the intersection of the R339 and the N2. The accused and Mamma China then drove down to Sanlam together. The accused bought a cable tie at the local hardware store to fix the bumper. It was too small and he promised to fix the bumper during the following week. [52]  While they were at Sanlam, said Mamma China, she saw Pietersen arrive in the silver Ford. She also noticed another silver vehicle which turned out to be Heils in the X-Trail. Mamma China then dropped off the accused at Sanlam and went back to Mavusi’s place. As she was alighting the Mazda, the accused took out a firearm from the cubby hole and tucked it into the waist band of his trouser. Mamma China said she was shocked to see that the accused had been driving around in her car with a firearm and she scolded him. Clearly, the accused had taken the firearm with him in the Mazda to The Crags that morning. [53]  In the meantime, Pietersen and Heils attended to the burial at The Crags and when they were finished, they loaded the equipment into the Ford Territory and proceeded back to Knysna each in his own vehicle. Heils said that he met up with the accused near Sanlam and they drove together up to the accused’s house in the X-Trail followed by Pietersen. There the two men were paid for their days’ work and they left together in the Ford to store the funeral equipment. The did not see the accused again that day. SATURDAY AFTERNOON [54]  The deceased made his way home during the course of the early Saturday afternoon and was seen there by U[...] and W[...]. U[...] said the deceased appeared to have had something to drink and he walked down the drive to a grassy verge below the house where he chatted to a neighbour, Fezile Willie Captain, who was enjoying a leisurely drink under a tree. Captain said that the accused did not drink and appeared to him like someone who had not slept the night before. [55]  After a while he said the deceased went back to his house to sleep. That was the last time Captain saw his neighbour. At that stage he noticed that the deceased was wearing a short sleeve shirt, shorts and sandals. He said that he heard of the deceased’s death the following Monday after the body had been discovered and when there was much talk in the neighbourhood. [56]  U[...] confirmed that she laid down next to her father while he took a nap and when they woke up, he told her that he was expecting a guest from Gqeberha (or PE as everyone called) it that evening and asked her to help him prepare the BnB area for the visitor. [57]  Reverting to the accused’s movements, he was seen at around 17:00 at a carwash owned by Mr Johannes Hendriks, known to all as Seun. The accused was there with his wife and while the X-Trail was being washed, the couple enjoyed some liquor and conversed with others who were there. Two state witnesses saw the accused at Seun’s carwash. Ruwayne Ennes who stayed with the Hendriks family and helped out at the carwash and Mbulelo Matlala, both testified that the accused was there with his wife. [58]  Ennes told the Court that he worked with a team of entertainers at various clubs under the name “DJ Bird”. He knew the deceased and says that visiting teams of entertainers would sometimes stay over at his BnB on occasion. Ennes told the Court that the accused who was drinking Hunter’s Gold cider while waiting for his car to be washed, had told him of certain events regarding the Friday night when he had overnighted at the deceased BnB. He said that the accused told him that when he woke up in the morning, he discovered that his car keys, his wallet and a bottle of wine was missing from next to his bed. He discovered that his car was also missing. [59]  Ennes said that he told the accused it was probably a bunch of maparas (slang for drug addicts), who were responsible but the accused said rather that he suspected the deceased, claiming that maparas would not have returned the vehicle. It transpired that the vehicle was in fact returned and this led the accused to maintain that it was indeed the deceased who was the thief. Ennes said the accused also told him that his cell phone had been stolen. [60]  Matlala who worked as a mechanic at the Toyota garage at Knysna during the week, earned some extra money on weekends at the carwash. He was tasked with washing the X-Trail that afternoon and he testified that when he opened the boot area of the SUV to vacuum it, he noticed a firearm lying in the boot under the carpet covering the spare wheel area. He also mentioned a damaged tyre that was lying in the boot. He said the accused came up and told him not to vacuum the car as he was in a hurry. [61]  Under cross-examination, the accused disputed that there was either a firearm or a damaged tyre in the boot of the X-Trail. Later, both witnesses told the Court that the couple left together in the X-Trail. [62]  The movements of the accused thereafter are the subject to some dispute and the State says it does not accept his version of events. Suffice it to say that there is no independent oral testimony as to the accused’s movements until around 22:00 that night. There is, however, digital forensic evidence in the form of the vehicle and cell phone tracking and CCTV footage to which I shall revert later. SATURDAY EVENING AT THE DECEASED’S HOUSE [63]  Both U[...] and W[...] testified that they were at home on the Saturday evening when they saw the accused upstairs in the breakfast area around 22:30. While the siblings largely corroborate one another in their evidence, there are some differences and I consider it preferable to review their testimony individually and in a little more detail. [64]  U[...], who testified in camera a week before her brother, said that her father did not have a cell phone at the time. She thought he might have lost it or that it was damaged but that his cell number was 0[…]. She further testified that if he needed to make or receive calls, the deceased made use of W[...]’s phone. [65]  U[...] testified that she and W[...] were going to sleep in the same room that night and that as she was preparing for bed, she heard a car outside. Then she said that she heard W[...]’s phone ringing and that she answered it. She recognised her father’s voice on the phone as he called her name a couple of times; "U[...]! U[...]!". Then she heard a woman speaking in IsiXhosa saying, "Saba!", which she understood to mean, "Give!" and the call was then terminated. [66]  U[...] said she found it strange and went to the kitchen door from where she had a clear view of the staircase and part of the interior of the breakfast room. She saw her father standing on the landing at the top of the stairs with another person whom she thought was female. She also saw the accused standing inside the breakfast room together with another male. [67]  Then U[...] said the following and I quote directly from the transcript, page 1255: " MS K[…] : I was laughing and I didn't think anything of it because normally Waydon does come there and I closed the door and I was laughing with my brother W[...] because I was like, why is he calling us? Normally he shouts our name out and this time he was calling us, so we were just laughing about it." [68]  Both children clearly regarded the deceased’s behaviour as out of the ordinary that night. U[...] further said that when she was standing at the kitchen door, she noticed a grey car parked in the driveway and a black car standing in the street. She did not know the make or model of either vehicle. She did not testify about her father’s departure from the house that night. [69]  W[...] testified that he and U[...] spent the Saturday at their house. Their sibling, C[…], was away on a school camp that weekend and only arrived back home on the Sunday afternoon. He described the departure of his father for The Crags and his return later in the afternoon when he told the children that he was expecting a guest from PE. W[...] said he helped his father get the place in order and later heard the arrival of the guest as she and two other men went upstairs to the breakfast area where they sat with the deceased. Initially W[...] said that this arrival was sometime between 19:00 and 22:00. Later he clarified it with reference to his normal bed time which he said was, "around 10-ish." [70]  W[...] explained the arrival as follows, and I quote again from the record: " MR K[…] : So, I did hear a commotion outside. I saw people going upstairs, I saw a woman and two fellows who went upstairs because I looked outside the living room window and I could see perfectly from, well not perfectly, but I could see from inside to the outside, from the stairs going up so I am aware when people are coming to the top and I can hear them perfectly." [71]  W[...] positively identified the accused as one of the men. He distinguished him as a so-called coloured person while the other were black African. He described the lighting as more than adequate. He observed that there is high-mast lighting which illuminates the entire neighbourhood as well as lighting in the breakfast area and an external light under the eaves which shines down onto the BnB area. When he saw that the accused was amongst the guests, W[...] said he relaxed because he knew him, implying that he trusted the accused. [72]  W[...] could not remember whether his father had a cell phone at the time but he testified that he (W[...]) had a Huawei cell phone with number 0[…]. His evidence regarding the late-night call on his cell phone was as follows and I quote from the record again: " MR K[...] : Okay, so once that happened, I went to my room where it was me and my sister. We were just chilling there for like that time and that's when I - my dad - my dad, I am not sure if my dad called U[...] or U[...] called him but that's when U[...] took the phone, right, U[...] took the phone and my dad said, ‘U[...]!’, but then that was the only thing my dad said. That's when U[...] started laughing going ‘Dad, why would you call me from that close?’. That's when U[...] went - stood up and went to look outside. She was like, ‘Dad, why would you call me from that close?’. I stayed in the room. I stayed in the house but U[...] kind of went outside and kind of looked, not really outside but opened the door and kind of looked. She was like, ‘Dad, I am right here, why would you call me from there?’. MR BADENHORST : Right. MR K[...] : And that was basically it. MR BADENHORST : So, you said your dad said "U[...]". How do you know he said U[...]? MR K[...] : I could hear his voice because from where, the house is not like that widespread, I could hear people talking outside in the house so I could hear him, his voice and ja. COURT : Did you hear his voice over the phone or did you hear his voice outside. MR K[...] : Both." [73]  The MTN cell phone records contained in EXHIBIT Q, which pertain to the number 0[…], reflect that this number was RICA registered in 2015 in the name of one Nontubeke Mali of 10 Nolene Court, Port Elizabeth. It was referred to in evidence either “4512” or “the Mali phone”. [74]  The MTN records show that a call was made from W[...]’s phone, 1435, to that number for 12 seconds at 22:26:42 that Saturday night but there was no incoming call from the Mali number prior to that. A missed call is one where there is no connection and thus does not reflect on the billing records. This suggests that there had probably been a missed call to W[...]’s phone and that U[...] called back to 4512 on 1435, whereafter she heard her father calling her name. [75]  When the prosecutor asked W[...] about this, he said that he could not remember the sequence of the calls, but he did say he saw an unknown number on his phone which was not saved under his contacts. The correct position later emerged in P[...]’s evidence to which I will refer later when she called the Mali number on the Monday. [76]  W[...] described how not long after this phone call, he saw his father and the three others who were upstairs with him including the accused, go down the stairs and leave the property where they all got into a black car with the deceased sitting in the back seat. The vehicle drove off in the general direction of Nekkies and the N2 but he never saw his father again. He suggested that the deceased appeared to have been escorted to the car, but he did not go so far as to suggest that he had been forced into the car against his will. Certainly, there was nothing disturbing in the deceased’s departure which caused W[...] any concern such that he had may have raised the alarm at that stage. SATURDAY NIGHT AROUND MIDNIGHT AND THEREAFTER [77]  The evidence of Mr Thabile Botman, a petrol attendant at the Total Energies service station in Main Road, Knysna, was that he was on night duty on Saturday, 15 January 2022. He knows the accused well as he regularly fills up at that garage. He testified that he saw the accused that night sometime between 22:00 and midnight. He said that the accused arrived in a silver Nissan X-Trail in the company of two other persons. The front seat passenger got out and went to the toilet. He could see that she was a short chubby woman in her 20’s. The rear seat passenger never alighted and Botman could not say whether it was a man or a woman. [78]  Botman described the accused’s jovial mood. He said he was dancing a jig on the forecourt with a champagne glass in his hand. When Botman asked him what the occasion was, the accused said, "It's one of those days" but did not explain himself further. After the passenger had been to the toilet, she went into the convenience store and bought some snacks. Thereafter the vehicle left. It had been stopped in the forecourt for quite some while without refuelling. [79]  Under cross-examination it was put to Botman that only the accused and his wife were in the car that night. He disputed this and said that he knew the accused’s wife as she and her son were in the car sometimes when the accused stopped there. He described the wife as short and slender as indeed she is. Botman said that he had reviewed CCTV footage of the forecourt a couple of days later and he was sure that it was not the accused’s wife. [80]  Ms Luterek cross-examined Botman on his statement made a week after the incident to the investigating officer on Friday, 21 January 2022. In the statement, he had spoken of three people in the car that night and had said that the time of arrival was 21h15. He had also said that the car had stopped for a long time and only left after 3 in the morning. [81]  Lastly, Botman said in his statement that never before had the accused stopped in the forecourt for such a protracted period of time. In concluding his cross-examination, he said he did not actually know what time the accused left the service station. [82]  From the Total garage, the accused went along the Main Road to the Ngoma night club which is located right opposite Cassandra Funerals. There, he and his wife were seen by DJ Bird who was one of the resident DJ’s that night. Ennes told the Court that his gig was from around 23:00 to 02:00 and that he saw the accused and his wife enjoying themselves. At one stage, the accused insisted that he take a photograph of them with his cell phone. He obliged and he told the Court that he still has the picture on his phone. [83]  Ennes said that the accused drank a brand of cider known as “Brutal Fruit Ruby Apple”. He described it as pinkish in colour and noted that the accused was drinking from a 500 millilitre can. Ennes was familiar with the drink as he sometimes enjoyed it himself, particularly when he had a hangover. When it was suggested to him under cross-examination that the accused had consumed Hennessy Cognac and wine that night, Ennes disputed that and said the accused only drank Brutal Fruit. [84]  According to Ennes, the club closed at 02:00 and when the accused was preparing to leave, he suggested to him that they should continue their revelry at Plett. Ennes said that he was not interested and went home with his girlfriend. He said but by the time he left, the accused was gone. [85]  There are no independent witnesses who testified regarding the accused’s movement after he left Ngoma. There are cell phone records and vehicle tracking reports which cover the time between 02:00 and 06:00 hours and these will also be dealt with later in the judgment. SUNDAY EARLY MORNING [86]  U[...] told the Court that she was awakened early on the Sunday morning just as it was getting light by the accused who was in the kitchen talking to W[...]. She went through and heard the accused asking where the deceased was. The children indicated that they did not know and U[...] even went upstairs to have a look at the BnB. The accused then left and the children went back to bed. [87]  A little while later, said U[...], she was startled awake by the accused standing in the bedroom door. When she wanted to speak, the accused indicated to her by placing his finger over his lips that she should be quiet and not wake up W[...]. [88]  U[...] testified that the accused arrived a third time later that morning and asked her if she wanted to go out for some ice cream, saying that his wife and child were in the car. She declined the offer after she had seen that the car was empty and told the Court that it was time for breakfast, not ice cream. [89]  W[...]’s version of these events is slightly different. He said he heard the first visit and it was U[...] who got up and went to see the accused. W[...] said he never saw him but he did recognise his voice. W[...] then gave evidence of a second visit when his sister woke him up to draw his attention to the presence of the accused in the doorway. W[...] was concerned that the accused had just walked into the house unannounced and when he heard him offering to take U[...] out for ice cream, he thought to himself, he thought he was “kind of smooth-talking her a little bit”. W[...] said that U[...] declined the offer and escorted the deceased out of the back door. They saw the accused again the following morning as I will describe later. SUNDAY MORNING AT TOTAL [90]  One of the daytime pump attendants at the Total garage, Marshant Krige, told the Court how the accused arrived there between 8.00 and 9.00 on the Sunday morning though he said he was unsure of the exact time. The accused, who is known to Krige, parked the silver X-Trail next to one of the pumps and filled up. Krige described how the accused then fell asleep in the car and eventually was asked to move the vehicle. Krige said that this was not due to a drunken stupor "getiep" but weariness. When asked to do so, the accused was unable to move the car himself and Krige had to climb in to assist whereafter the vehicle was parked at the rear of the forecourt. Krige noticed a can of Brutal Fruit cider in the console between the front seats. He said that he too is familiar with that particular beverage. [91]  The footage at the Total garage was recorded on the business’ own CCTV cameras and most of the footage had been erased by the time the police asked to see it some 10 days after the event. There was limited footage available of the X-Trail parking at the pumps as described by Krige. The time recorded on the footage was found to be about 10 minutes behind the actual time or "real time" as the witness called it. Video footage of the cameras covering the total forecourt shows that the X-Trail was there from approximately 07h33 to 08h22 real time on the Sunday. [92] The X-Trail then departed from the Total garage and from this time onwards, the X-Trails movements can be closely followed on CCTV footage supplied to the Court by Allsound Security in Knysna. I shall elaborate on this further when I consider the evidence of Mrs Ashley Boetius of Allsound. Suffice it to say at this stage the X-Trail then being driven by the accused who was readily capable of being identified, drove around various streets in the Knysna CBD and the waterfront area before stopping at the Shell garage in central Knysna. SUNDAY MORNING AT SHELL [93]  The first footage of the forecourt cameras at the Shell garage that Sunday morning viewed by the Court shows that at 06:50, a black VW Polo, entered the wash bay. The driver wearing a red cap and dark tracksuit bottom with distinctive red stripes down the leg and a passenger with a backpack on his back, exited the vehicle which has registration number C[…]. [94]  Initially the accused identified the driver of the black Polo as a certain Sethu but later corrected himself allegedly after viewing the moving images rather than the stills in EXHIBIT M, and said it was Themba. It was later established that the vehicle was registered to one Themba Manini. At the time that the Polo stopped in the wash bay, the carwash was not yet operational. It evidently only opened at eight o'clock. [95]  The X-Trail can be seen arriving at the Shell forecourt at 09h08, that is some 50 minutes after it left the Total garage and it remained there until 10h25 - for more than one hour and fifteen minutes. During that time, the accused can be seen moving around the forecourt dressed in a cobalt blue golf shirt and checked long trousers. [96]  The X-Trail was eventually pulled into the wash bay at 09h30 and when the exterior had been cleaned, it was parked under a nearby car port where the boot compartment was extensively vacuumed under the watchful eye of the accused. This process took of the order of 20 minutes. [97]  The black Polo belonging to Themba Manini which had been seen earlier in the wash bay, was observed to be parked under the same carport at approximately 9h20. At 9h23, the accused can be seen leaving the forecourt, driving the black Polo and at 9h29 returning the vehicle to the wash bay area. Thereafter, the Polo remained on the forecourt in close proximity to the X-Trail for at least 55 minutes while the accused was busy either sitting in the Polo or talking to its driver. [98]  In short, the accused took control of the Polo for a short while and thereafter exhibited considerable interest in the vehicle’s occupants for quite some time. [99]  In the meantime, Pietersen arrived at the Shell garage in the Ford Territory at 9h41 and after he had conversed with the driver of another vehicle that was refuelling and receiving a call on his cell phone, he walked over to where the accused was standing near the black Polo. Clearly the accused had called Pietersen to let him know where he was on the forecourt. [100]  At 9h47, the accused walked up to Pietersen and can be seen burying his face in Pietersen’s chest in what can only be described as an emotional embrace. This was not a bear-hug between two male friends as was suggested on behalf of the accused. Rather one is left with the abiding impression of the accused hugging the older man, that he called "Uncle Pat", in an expression of deep emotion. Perhaps because he was relieved to see him or perhaps because he sought solace from something that was troubling him? [101]  Pietersen left the forecourt in the Ford at 10h04, leaving the accused in the immediate vicinity of the black Polo, only to return 8 minutes later at 10h12. Pietersen then parked close to where the black Polo was and the accused can be seen walking up to the Ford and conversing with Pietersen before he left again at 10h14, a stop of just two minutes. The accused left the Shell garage not long thereafter while the black Polo was still parked there when he left. [102]  At one stage the video footage shows that a Toyota Quantum mini bus bearing the emblem of the Brenton Blu holiday resort, arrived at the Shell forecourt. It can be seen parked close to the carport area at 09h16. The driver of the Quantum was later identified through his clothing as Themba Manini, the same person who parked the black Polo in the wash bay at 6h50 wearing the red cap and striped tracksuit bottom. [103]  There is no further video footage recording the accused’s movements on the Sunday after he left the Shell garage nor is there any reliable independent oral evidence regarding his movements. Suffice it to say that the vehicle tracking report shows that the X-Trail was switched off at 10h36 in the vicinity of the accused’s house. This is about 10 minutes after he left the Shell garage and it is safe to infer that after he left the Shell garage, he drove straight home. The vehicle remained switched off at the accused’s home until it was started up again at 16h38 on the Sunday afternoon. SUNDAY EVENING [104]  C[…] K[...] returned from his school camp on the Sunday afternoon. When there was no-one to collect him, he phoned P[...] and asked for her assistance. Realising that the deceased was not around at that time, P[...] had the presence of mind to call up a favour from the Knysna police who sent a patrol van round to the school to give the youngster a lift home. By Sunday evening, the deceased had not yet arrived home and W[...] said that they were a little concerned but not sufficiently so as to raise the alarm. He said they secretly hoped that their father would come home that night. MONDAY 17 JANUARY 2022 [105]  C[…] had enough money to be able to take a taxi to school on the Monday morning but W[...] and U[...] did not have money. While they were deciding what to do, the accused arrived at the house asking after the deceased. Once again, the children could not tell him, but W[...] said they found this inquiry a bit odd as they had seen the deceased leaving the house on the Saturday night in the company of the deceased and others and that he should know where the deceased was. [106]  In light of the fact that the deceased had occasionally asked the accused to give the children a lift to school in the past, they thought that the accused might offer to help them out that Monday morning. However, they said the accused was only interested in a damaged car tyre that was standing under the sink in the kitchen. W[...] said that he had first notice the tyre three or four days before his father’s disappearance on the Saturday night. When he asked his father about it, his reply was rather equivocal and it is clear that W[...] was not particularly interested in the tyre. [107]  W[...] said that on the Monday morning, the accused referred to the tyre and said that the deceased was supposed to have repaired it. Noticing that the tyre was still damaged, the accused took it with him ostensibly to attend to the repair himself. [108]  W[...] and U[...] did not go to school on the Monday because their father had still not returned home, they were now really concerned so W[...] phoned his mother to report this fact to her. P[...] undertook to come through from George as soon as she heard of this. She arrived shortly after 14:00 that afternoon and W[...] immediately told her of his father’s departure in the company of the accused and the others on the Saturday night after 22:00. He also informed her of the call that had been made to the 4512 number at 22h26 that night. [109]  W[...] said, and P[...] later confirmed in her evidence, that she had dialled the number several times on her phone, 0[…]. The cell records of the 4512 number show various calls between 14h46 and 15h02 from 2772, all of which went to call forwarding suggesting 4512 was on voicemail. [110]  W[...] tried calling the 4512 himself on his phone, 1435, and after several failed attempts there was a connection at 15:44:32 for 108 seconds. W[...] said that P[...] also made calls on his phone and had spoken to the person who answered at 15:44:32. He did not know what the conversation was about. [111]  P[...] told the Court that she had never met the accused before but knew him by sight having seen him around town. The first she knew of her husband’s absence from home was when W[...] phoned on the Saturday to say that Cuma needed transport back from camp. She does not appear to have been unduly perturbed by this and asked the police to do her a favour and collect him. [112]  P[...] said that when she received the call from W[...] on the Monday regarding the fact that the deceased was not there, she became concerned because he did not leave his children alone at home. She decided to travel through to Knysna. Before doing so, she asked W[...] to get hold of Captain and when they had him on the line, he told her that the last time he had seen the deceased was on the Saturday afternoon. On the way to Knysna, P[...] phoned a friend at the local hospital to see whether the deceased had perhaps been admitted. This inquiry did not reveal anything but her friend suggested that P[...] should check the cell registered at the police station to see whether the accused had not perhaps been arrested. She did so and found nothing. Thereafter she went to the deceased’s home where she found W[...] and U[...]. [113]  W[...] told P[...] that he had seen the deceased leaving the house in the company of the accused, another man and a woman. U[...] also told P[...] of the call to the Mali number. P[...] said she checked W[...]’s call register and saw an incoming call from that number and an outgoing call shortly thereafter. Having heard that the deceased had left in the company of the accused on the Saturday night, she first phoned him and introduced herself. The cell phone records show a call from her, 2772, to the accused, 1793, at 14h31 for 239 seconds. P[...] said that this was the first time she had ever spoken to the accused. [114]  P[...] told the accused that the children were saying that they had seen him with the deceased on the Saturday. He told her of the trip to The Crags and said that he had dropped him off near Magadla’s and that that was the last time he had seen the deceased. When P[...] asked the accused whether there was any other person she might call, he gave her a number. When she verified the number on the Truecaller app, she saw that it belonged to Khaya Adonis. P[...] explained that the Truecaller app gives you the name of the person in whose name the number is registered under the RICA legislation. [115]  P[...] said that she called the number but was unable to establish the deceased’s whereabouts from Khaya. Then P[...] set about calling the Mali number from her own phone, 2772. She was eventually able to speak to the person on the other end in IsiXhosa who was similarly unable to give her any information about the whereabouts of the deceased. P[...] said that Truecaller told her that the Mali phone was registered to a certain Daneo Aspin. When the call was dropped, P[...] tried phoning back repeatedly and each time the call went to voicemail. Then P[...] tried calling on W[...]’s phone and she eventually got through to 4[…]. She was able to speak to the woman on the other side again but to no avail. [116]  EXHIBIT Q demonstrates that the Mali phoned, moved down to Knysna from PE on the Friday, that is the 14th, stayed there for the weekend and left again for PE just after 14:00 on the Sunday arriving back, thereafter the phone remained active in the PE area. [117]  P[...] said she then took W[...] to renew his bank card, picked up C[…] at school and took the children to the Spur restaurant at the Waterfront for a meal. She was now becoming more concerned and decided to report the matter to the police. In the meantime, she said the accused had called her again and that when she had returned a missed call, she spoke to him a second time. P[...] said when the accused asked her whether she had found the deceased, she responded by saying that that was what she should be asking him as the children had reported to her that the deceased had been seen leaving his home in the company of the accused. [118]  P[...] said that the accused told her that he did not socialise with the deceased and that he had been with his wife at the beach. She then decided to go and report the matter to the police and when she parked outside the police station, she called the accused again at 18:48:31. She did so, she said, because the children kept on telling her that the accused should know something about the disappearance of their father as he had left in the company of the accused. She said that the accused’s response was inconsistent and that he kept on changing his story, all the while insisting that he and the deceased did not socialise. She said he was talking "deurmekaar" and then she gave up with talking to the accused and went into the police station. [119]  Once inside, P[...] was in familiar territory. She said there was a long queue at the desk to the charge office so she went straight through to the office of the shift commander, Warrant Officer Appels. As she was waiting to talk to him, she realised that something was happening. The police were busy responding to a report of a body found near the Denron quarry which is on the R339. She then feared the worst and went through to the charge office to speak to the person on counter duty, a Constable Van Rooyen. P[...] said that he appeared decidedly uncomfortable and asked her if she had a photo of the deceased. When she said no, Van Rooyen found one on Facebook which P[...] confirmed was the deceased. Van Rooyen then undertook to post that photo on the police WhatsApp group. [120]  P[...] said she was panicking and did not know what to say to the children. She decided to visit her friend from the hospital, Mrs Khalani, at home. They were church friends and their children were also friends. P[...] left the children in Mrs Khalani’s custody and went to phone the police from a different room. Every time she called Appels, her call was dropped. The police obviously did not want to speak to her. Eventually, she said she phoned Sergeant Xokozela as she had his number. He reluctantly confirmed to P[...] that the body found near the Denron quarry was that of the deceased. [121]  P[...] said she informed the deceased’s family and then took the children back to their home. She arranged for their church leaders to come to the house and break the news to the children. TUESDAY 18 JANUARY 2022 [122]  The next morning, P[...] was asked to go to the police mortuary to identify the deceased’s body. The cell phone records show a call to her from the accused at 08:58:44 and further calls at 12:39 and 18:42. P[...] said that she could not remember the first call but that when she was at the police station, she told Xokozela that he should speak to the accused as he was the person in whose company the children had seen the deceased on the Sunday night. [123]  P[...] said during the Tuesday morning, the accused phoned her and asked her in an intimidating tone why she had given his number to Xokozela. She again told him that this was because of what the children had told her about seeing him with the deceased. [124]  P[...] said that she went back to the house and while there, Mamma China drove past in the silver Ford. She stopped and spoke to people gathered near the road, saying that the accused had called her and urged her to stick to her version. That version was that the deceased had been seen near Magadla’s on the Saturday afternoon. She said she was unsure what he meant but P[...] called the accused and put the phone on speaker and asked about Mamma China’s allegation. This was at about 12:40 on the Tuesday. The accused again denied that he knew anything about the death of the deceased. [125]  P[...] said that after the call ended, Mamma China told her about the firearm which the accused had hidden in the cubby hole. She also handed P[...] a sock and a bank card which had no name on it that she had found in the Ford. P[...] attempted to find out from Standard Bank to whom the card belonged, but she was told that she required authorisation of the card holder before they could divulge such information. P[...] said that the accused also phoned her to ask her who would be handling the deceased’s funeral. THE ACCUSED’S TUESDAY INTERVIEW WITH THE POLICE [126]  Sergeant Xokozela told the Court that he had phoned the accused on the Tuesday morning. The cell record showed a call from the sergeant’s landline to the accused’s cell phone at 08h48. He asked the accused to come to the police station so that he could interview him. The accused told the sergeant that he was on his way back from Plett and that he would see him later that morning. The tracker records show, however, that the vehicle was in fact travelling back from George. [127]  Sergeant Xokozela then interviewed the accused around 11 o'clock on the Tuesday at the offices of Cassandra Funerals after the accused had phoned him to tell him he was there and available to be interviewed. He said that the accused was not cautioned because he was not a suspect at that stage and he only wanted to record a witness statement from him. The accused obliged and deposed to the statement, that was handed in as EXHIBIT Y, at 11h25 that morning. [128]  The material parts of the statement record that: 1.  On Friday, 14 January 2022 at about 21:00, the accused was at the deceased’s house with "the big guy from Mzondi family and the other lady." 2.  The “big guy” asked the deceased to take him home in the accused’s car and he gave the deceased permission to use the car. 3.  The deceased then left with the “big guy” and the unknown female. 4.  When he woke at about 6.00 the next morning, he saw that the car keys were in the bedroom but that his Samsung cell phone and the sum of R1 000 was missing from his wallet. 5.  When the accused asked the deceased about his missing cell phone and the money, he could not answer the accused. 6.  The accused said he went downstairs and noticed there was "a knock" on the front tyre. He asked the deceased about this but he did not explain and just apologised. He accepted that explanation as he realised that the deceased had been drunk. 7.  The accused said that he told the deceased that he would have to go and borrow a car from Mamma China as he could not use his own car but he said he then did not have her cell phone number as it was on the stolen Samsung and so they then walked down to her place. 8.  After they had borrowed the car, they returned to the deceased’s house to collect his sunglasses. They then drove into town where the secretary at Cassandra Funerals, opened the office for them and they loaded equipment into Mamma China’s car. 9.  The vehicle then made a U-turn in the Main Road. The accused picked up a R3 000 traffic fine in the process. 10  They drove through to The Crags to conduct a funeral and while they were there, Mamma China phoned a number of times asking for her car back. 11.  They drove back to Knysna and the accused dropped off the deceased at the stairs near Magadla’s Tavern sometime after 11.00 in the morning. 12.  The accused said he went up the Uniondale road to Mamma China’s house where they loaded a tent into the car. When they drove past Magadla’s again, the accused saw the deceased sitting on a wall near the tavern but he could not offer him a lift because there was no space due to the tent. 13.  They dropped the tent in Bongani and then the accused went to a hall to fetch some chairs. There he met one Jossie and asked him to drop off the chairs for R50. He obliged. 14.  The accused said he went back to Bongani to fetch Mamma China and drove her home so that she could refresh. Then Mamma China dropped the accused off at his house. 15.  Later on the accused took "a family car" and fetched his wife in Hornlee before going back home to take a bath. Then he took the car to the carwash. 16.  From the carwash the accused and his wife went to Leisure Island to braai some meat. There he met "a few guys" and meat was cooked. 17.  Then they drove to Elegant Tavern where the accused spoke to the owner. From there they drove to Ingoma, After Ingoma, they went to S’khulu’s Tavern in KwaNokuthula and then onto Spotlight. The accused said that he drove all the time. 18.  The accused said that they returned home early on the Sunday morning and went to sleep. When he woke up in the morning he continued with his "normal duties". 19.  On the Sunday afternoon, said the accused, he went to the deceased’s house to fetch a tyre. The children told him the deceased was not there and so he left them and went back home. 20.  The accused said that on the Monday morning he drove to work and when he passed the house, he saw the children outside. He asked W[...] to bring the tyre to his car which the youngster did. Then he went to work. 21.  The accused said that on the Monday afternoon, he received a call from the deceased’s wife who asked him regarding the deceased’s whereabouts. He said he told her he did not know. 22.  When the deceased’s wife told him that the children had told her he had left in a black car with the deceased, he explained to her about Mamma China’s car and that he had driven it. 23.  Finally said the accused, the deceased’s wife asked him for "Khaya’s" number and he gave it to her. [129]  Sergeant Xokozela testified that he carried on with his investigation and during the course of the Tuesday, he received information that the accused had been seen at the Total garage on the Saturday evening and at the Shell garage on the Sunday morning. He took statements from W[...] and Botman on Thursday, 20 January, and realised that there were things that the accused had not told him when he made his earlier statement, EXHIBIT Y. [130]  Accordingly, the sergeant asked the accused to come in the following day for a further interview. The accused asked if he could bring along his attorney and Xokozela said yes. THE FRIDAY INTERVIEW [131]  The sergeant said the accused arrived for the interview accompanied by his attorney, Mr Bans. Colonel Khan was also present and Xokozela said he interviewed the accused under caution. He warned him that anything he said could be used against him at Court and the attorney advised the accused that he was not obliged to say anything. [132]  The accused was happy to continue and he was then asked to repeat his version of events. The interview was not recorded either in writing or mechanically but the sergeant said he did take down handwritten notes which were still available. He was not asked by Mrs Luterek to produce them. [133]  The Friday version given by the accused generally followed that set out above but there were additions and variations. I shall only deal with those aspects: 1. The accused said that on the Saturday morning, his employees arrived at the deceased’s place to collect the vehicle for use at the funeral. He and the deceased then walked down to Mamma China to borrow another vehicle. 2. He said that he and the deceased met up with his employees at the grave site and they made preparations for the burial together. 3. He and Mamma China went up to Bongani to help with the setting up for a ceremony of a returning initiate. 4. Mamma China later dropped him off at Sanlam where he got into the vehicle driven by his employees and took them home to pay them. 5. The employees went off in one vehicle and he drove the other vehicle to go and collect his wife. They then went to the carwash in Dam se Bos. 6. After returning to the house to collect the braai "stuff", they went to Leisure Isle to barbecue. 7. They then went back home to offload the braai stuff, whereafter they visited the various clubs referred to in the first statement. 8. Early on the Sunday, he drove to the deceased’s house looking for him but was told by the children that the deceased was not there. [134]  The sergeant then said that he then posed questions which the accused answered freely and voluntarily. When confronted with W[...]’s evidence that he had seen the accused at the deceased’s house on the Saturday night, the accused denied this and stood by the version that he had last seen him near Magadla’s on the Saturday late morning. [135]  Xokozela then asked the accused who the owner was of the car he was driving. The accused told him that he had hired it in Plett from someone called John who was from Johannesburg and did private rentals. When the sergeant asked for further details, the accused said that the rental was arranged telephonically and that he would then go through to Plett to collect the vehicle at a pre-arranged spot where the keys were hidden under the rubber mat. Payment was made to an unknown taxi owner in Plett and the vehicle returned to the same spot and the keys hidden as before when the rental was completed. Xokozela said he found the explanation suspicious and asked for contact details of John and the taxi owner. The accused could not provide these as John’s number was allegedly on his stolen phone and the taxi owner was only known to him by sight. When the sergeant asked about the vehicle, the accused told him it was a silver Nissan X-Trail. That as it turned out, was a crucial development in the investigation. WEDNESDAY 26 JANUARY 2022 [136]  This was a breakthrough day in the investigation of the case. Xokozela first visited Mrs Boetius at Allsound’s premises and they viewed the available footage from the Shell and Total garages. He was able to establish the registration number and details of the silver X-Trail and was soon in contact with Thrifty. Fortunately, the car was still at their premises at the airport and it had not been rented out again in the interim. The car was seized by the police and taken through personally by Sergeant Xokozela to the LCRC premises in George. [137]  Captain Marius Joubert, an experienced forensic examiner, worked through the night that Wednesday looking for DNA samples and fingerprints and he struck gold. He found extensive and conclusive evidence that the vehicle had been cleaned in a vain attempt to remove blood stains, but through the use of chemical testing, he found traces of blood in the boot area on the mat covering the boot, and between the mat and the covering of the area housing the spare wheel. There were also signs of blood on the side of the front passenger seat and the back of the rear passenger seat. Preliminary tests conducted in situ indicated that it was human blood. [138]  DNA samples were harvested and sent for analysis at the police’s Forensic Science Laboratory in Cape Town and eventually in July 2022, the samples were positively linked to the deceased. [139]  Certain of the samples also contained mixed DNA profiles which included the DNA of the deceased and a partial mix of the DNA of the accused. It is common cause per EXHIBIT B that the DNA samples were properly analysed and the blood of the deceased was found in the rear of the X-Trail. The fingerprint analysis did not produce any positive results. THE VEHICLE TRACKER EVIDENCE [140]  During the course of Wednesday, 26 January 2022, the staff at Thrifty also provided the police with electronic copies of the vehicle tracking records of the X-Trail. These were for the period from 15:22 on the Friday afternoon of 14 January to 10:08:16 on the morning of Tuesday, 18 January 2022, when the vehicle was returned by the accused. Thrifty confirmed to Xokozela that the accused was supposed to have returned the vehicle on Sunday the 16 January but that he delivered it 2 days late. [141]  The tracker record received from Thrifty was handed in as EXHIBIT O and it was admitted in its entirety by the accused in EXHIBIT B. Later, the police obtained the official record from the company which monitors the tracking system, Fidelity Services Group in Gauteng, and this was handed in as EXHBIT O2. The tracker report is a running record of each trip the vehicle takes from the time the ignition is switched on until it is switched off. Every time it is switched off, the tracker records the trip just undertaken and reflects the speed of the vehicle over the course of that trip, the idling time and any errant driving such as speeding, harsh braking and swerving. [142]  In the case of the tracker records furnished for the X-Trail for the period in question, the vehicle covered 122 individual trips - some of very short duration and others lengthy – having covered 941 kilometres in 4 days with the highest recorded speed being 149 kilometres per hour. [143]  The tracker records reflect the geographical co-ordinates of the vehicle as it drives along and correlates them to the nearest known street or road. The tracker itself is fitted to the vehicle and makes use of a global positioning system (GPS), which is operated by a series of satellites orbiting the earth. I shall discuss this further when I review the expert evidence of Mr Adrie Stander. [144]  Once the police had recovered the record from Thrifty, they set about examining it with reference to known GPS co-ordinates. These can be used fully correlated by an ordinary smart phone which is equipped with an app such as Google Maps. When the forensic team were at the body scene on the Monday, the GPS co-ordinates were recorded. [145]  Colonel Khan testified that during the course of Wednesday, 26 January 2022, he held a briefing session in his office. The police knew from Krige’s evidence, that a cider can had been seen in the X-Trail on the Sunday morning and they were also provided with information that such a can had been found in the car when it was washed at Shell. They also knew from the tracker report that the vehicle had been travelling on the Bokkoppie road and the R339 in the vicinity of the Denron quarry which is on the left of the tar road when one travels towards Uniondale. The colonel said he used the tracker co-ordinates to follow the vehicle’s path on the Sunday morning and he went out to the area on the 26 January. [146]  Colonel Khan said he first went to an area in the forest just opposite the Denron quarry. It was accessible via a dirt track which branched off the R339 to the right and which led to a clearing some 200 metres off the tar road. The area itself is not visible from the R339. At the clearing, which I shall call the "Denron scene", Colonel Khan found two Brutal Fruit cider bottles and a plastic cling wrapper with Brutal Fruit branding, lying on the ground. He did not have gloves with him but he carefully lifted these items up with a stick to avoid contamination. He took them back to his office where he stored them overnight in a plastic bucket which he covered with a blue jacket. [147]  Colonel Khan then proceeded to the body scene which he knew from his visit there on the Monday evening when the body was found. There he found a crumpled Brutal Fruit can which he similarly lifted with a stick and took back to his office for overnight storage. The following day, 27 January 2022, Colonel Khan went back to the Denron and body scenes with an official photographer from the LCRC in George, Warrant Officer Shannon Williams and pointed out areas where he had picked up these items the previous day. Williams’ photographs were handed in as EXHIBIT J. [148]  Under cross-examination, Colonel Khan said that he did not notice any marks on the ground at the Denron scene which suggested that there may have been a scuffle there, nor did he notice any tyre marks. However, we know from both the tracker report and the accused’s subsequent admission, that the X-Trail visited both the Denron and the body scenes on the Sunday morning between 05h05 and 05h15. The material aspects of the evidence of Colonel Khan and Warrant Officer Williams, were admitted by the accused in EXHIBIT B. Colonel Khan said that he had no further involvement in the investigation after this activity. THE EVIDENCE OF MS BOETIUS [149]  Ms Ashley Boetius is employed by Allsound Security in Knysna. This firm is extensively involved in all manner of security services in the area including neighbourhood patrols and the maintenance of CCTV cameras all over town. These are mounted on buildings to keep an eye on the streets and also in places accessed by the public such as filling stations. [150]  Both the Total and Shell garages are clients of Allsound and have various cameras which cover all parts of the premises. When she checked the Total garage images, Ms Boetius found that the inbuilt digital clock on the CCTV system was running approximately 10 minutes ahead of real time. She compared this with the time on her cell phone. Accordingly, when we view any of the images at the Total garage, we must deduct 10 minutes off the time reflected on the CCTV screen. In all instances, I will refer to the real time of the images. [151]  There was only limited footage still available at the Total garage and the only images of relevance that were placed before the Court related to the accused’s visit there on the Sunday morning in the silver X-Trail. These showed that he arrived at 07h33 and remained standing at the pumps until 08h07 when Krige can be seen reversing the car parking it out of picture. [152]  The original images were downloaded on disk and handed in as EXHIBITS 1 to 5. There are static screen grabs of the video images in EXHIBIT M and these images show that the X-Trail left the Total garage at 08h22. Thereafter the vehicle is captured on street cameras as it moved around the Knysna CBD. There is nothing of particular interest as the accused is seen driving around and stopping at various shops. [153]  The images captured by the cameras at the Shell garage are far more extensive and were most helpful to the Court. The cameras covered the entire expanse of the premises including the pumps, the forecourt and the wash bay. The first images of interest at the Shell garage are the arrival of the black Polo mentioned earlier at 06:50:45 on the Sunday morning and which remained on the forecourt until at least 10h25, safe for the period of 5 minutes or so when the accused drove it away. We know that the driver has been identified as Themba Manini. [154]  The X-Trail arrived at the Shell garage at 09:08:40 driven by the accused. There it remains until 10:25:16 when the accused drives off. These various activities at the Shell garage which I have already described earlier, are all visible on the CCTV images. [155]  Allsound’s street cameras also captured the arrival of the X-Trail at Ingoma at 23:18:30 on the Saturday night where he and his wife can be seen alighting from the vehicle and crossing the road to the club. The accused’s quick jaunt to the nearby Super Spar shopping area at 00:45 and his return at 00:48, are also captured. Lastly, the departure of the accused and his wife from the club is recorded at 01:08:054. [156]  Under cross-examination, Ms Boetius said that Leisure Island is also extensively monitored by Allsound CCTV cameras and there is a 24-hour security presence at a hut at the entrance and exit to the island. There were no longer any images available from the cameras covering the Green Hole picnic site on the island. [157]  The Court would like to compliment Allsound and Ms Boetius for the excellent public service which is rendered to the police and the people of Knysna in combatting crime and assisting in investigating matters through their cameras. CELL PHONE RECORDS [158]  The requisite subpoenas were issued to obtain copies of the accused’s records from 1[…] from Vodacom and for 4[…] from MTN. The MTN records are relatively short and were handed up as EXHIBIT Q and a cover of an affidavit from an authorised employee. [159]  The Vodacom records of the accused’s main phone, 1[…], run to 308 pages and were handed in as EXHIBIT P. Those records were placed before the Court with the viva voce evidence of Ms Amanda Fourie. [160]  Ms Fourie explained how the records are to be read, explaining the relevance of the base towers in operation when a call is made. She also explained how the calls are to be read when it records "CF". This is the abbreviation for “call forwarding” and will occur when a phone goes unanswered or when the phone is being used to make a call and there is another incoming call. In such event, the base station closest to the handset will be reflected as the station which forwards the call to voicemail. [161]  Lastly, the witness pointed out that each cellular instrument has a unique serial number called the IMEI number and this is reflected on the record as part of each call’s details. So, in the event that a customer changes SIM cards but retains the handset, the IMEI number will be reflected against the new SIM. [162]  Ms Fourie noted that throughout the billing period in question, the accused used the same handset with the same SIM, for 1[…]. There are a number of calls which corroborate witness testimony in this case. So, for example, when the accused called his wife or vice versa, these calls can be verified. Similarly, if the accused was contacting other persons of interest in this matter, this can be verified. [163]  The cell phone records serve a useful secondary purpose, namely, the tracking of the movement of the instrument with reference to the base stations its signal bounces off much like the tracking of a vehicle through GPS. This tool is most useful when used in conjunction with the vehicle tracker because it can tell you whether the user of the handset is in the vehicle or whether the vehicle is being used by someone else. I will deal with the relevance of certain calls made to or from the accused’s number later. Similarly, the relevance of the calls made to and from the 4[…] number will become apparent later. THE EVIDENCE OF ADRIE STANDER [164]  Mr Adrie Stander holds a Master’s degree from the University of Cape Town and is an internationally recognised expert in the field of digital forensic analysis. Mr Stander provided his services to the Court at the request of the State on a pro bono basis. The Court considers his testimony as being of critical importance in this case and the Court commends his for his assistance in the public interest. His testimony was illustrated through EXHIBIT CC, an album drawn up by the witness for use in court. [165]  Mr Stander assessed the tracker records of the X-Trail, EXHIBITS O and O2 and plotted them on a map with the assistance of the Google maps and Earth apps. He also considered certain of the cell phone records. Accordingly, one can see the geographically route taken by the car on selected trips. The duration of the trip, the length of time where the vehicle stopped and idled or was switched off. This data was then loaded onto a computer programme and projected onto a screen in Court and one could then see where, when and how the X-Trail travelled. The movement was checked against the cell phone data for 1[…] and one could then see whether the phone of the accused was in the car or not. [166]  It must be stressed that the tracking of the car does not necessarily reflect the movements of the accused. He may have given the X-Trail to someone else to drive such as when Heils went through to The Crags while he and his cell phone were elsewhere, as was the case when he was in Mamma China’s Mazda travelling back from The Crags. [167]  Mr Stander explained that the co-ordinates on EXHIBIT O and EXHIBIT O2, only needed to be read down to the 4 th decimal point which would give an accuracy of up to 10 metres. Further, he pointed out that some of the street names in Khayalethu were incorrectly recorded on outdated maps. So, while the deceased lived in Mbetane Street, the GPS recorded it as Peter Street and the accused’s home, also in in Mbetane Street was recorded as Booysen Street. Lastly, because the GPS is correlated through at least four different satellites at any one time and because those satellites are orbiting the earth, there is sometimes a small degree of inaccuracy in the record. So, a vehicle might be seen to be switched off in one street but it could be switched on in a street with a different name which is close by within the 10-metre area of tolerance already mentioned. In this regard Mr Stander explained that the short distance covered by the X-Trail when Krige moved it at the Total garage on the Sunday morning, was not picked up by the tracker, either because the distance was too short or because the satellites did not have enough time to align themselves. [168]  EXHIBIT CC only deals with the movement of the X-Trail from the departure for Plett from the deceased’s house at 06:32 on the Saturday until its return to the accused’s house at 10:36:45 on the Sunday, where it remained switched off until 16:38:23 on that day. [169]  The most important observations made by Mr Stander in EXHIBIT CC in relation to the vehicle’s movements on the Sunday are the following: 1. The X-Trail stops outside the deceased’s house at 4:57:41 for 2,5 minutes. 2. It left the deceased’s house at 05.00.18 and travelled directly to the Denron scene where it stopped at 05:05:19 for 18 minutes. 3. When it left the Denron scene at 5.23.19, it travelled south all the way down the R339 towards the N2, turned right and went down the N2 for a short distance before making a U-turn and travelling back up the R339 in the direction of Denron quarry. On its way down the R339 towards the N2, the vehicle stopped near a known spaza shop. 4. When the vehicle got to the fork where the Bokkoppie Road branches off from the tar road, the vehicle followed the Bokkoppie Road, driving in the direction of the body scene where it stopped at 5:50:17 and idled for more than two minutes. 5. The vehicle then drove a short distance down the Bokkoppie Road in the direction of Simola and made a U-turn, driving slowly past the body scene. When it got to the R339, the X-Trail made another U-turn and drove slowly past the body scene a second time, made another U-turn and then sped off down the R339 where it stopped briefly at two places, including a building known as Green’s Tavern. 6. Then the vehicle drove back to the deceased’s house, arriving at 06.11.05 and remaining there for one hour and 11 minutes, until 7:23:22. 7. The X-Trail then drove from the deceased’s house to the Total garage where it stopped for 58 minutes as described by Krige. 8. After leaving the Total garage at 08.21.45, the X-Trail drove along various streets in the CBD, stopping at a number of shops along the way before dropping someone off at the entrance to the Waterfront, then arriving at the Shell garage at 08:59:15 where it stayed until 10:15:50, one hour and 16 minutes. These times fit in neatly with Ms Boetius’ observations on the CCTV cameras. 9. After leaving the Shell garage, the X-Trail drove up to Nekkies where it stopped at the taxi rank for a minute, then drove on to the accused’s home, stopping for another minute on the way where it arrived at 10:36:45. The vehicle was switched off there until 16:38:23. All of these trips are admitted by the accused who says he was on board the X-Trail at all times. [170]  In relation to the Saturday, the following observations are relevant: 1. The vehicle left the accused’s house at 15:27 and stopped at the taxi rank near Sanlam at 15:37 for two minutes. 2. After leaving the taxi rank, it drove to Davidson Street in Hornlee, arriving at 15:44:12. This is where the accused said his wife’s grandmother stayed. After the vehicle was switched on again, it idled until 15:49:50 whereafter it left for the CBD. 3. After stopping briefly at a carwash near Pick ‘n Pay, the X-Trail stopped at the Total garage at 16:11:18 where it stayed for 45 minutes until 16:56:41. Then it headed to the accused’s home, arriving there at 17:09:49. 4. At 17:27:22, the car leaves the accused’s home and drives to his mother’s house where it stopped for 5 minutes, arriving back at the accused’s house at 17:45:23. 5. After stopping at home for more than an hour, the X-Trail left for the carwash, arriving there at 17:55:56 where it stopped for one hour and 7 minutes. 6. The car left the carwash at 19:01:03 and drove down the N2 to the East End Kwik Spar where it stopped for nine minutes. 7. At 19:15:21, the X-Trail left the Kwik Spar and drove to the Green Hole picnic site on Leisure Island, arriving at 19:23:44, where it stopped for two hours and 40 minutes. 8. At 22:05:32, the X-Trail leaves the picnic site and arrives at the accused’s home at 22:20:24. It leaves again at 22:28:33 and drives to the accused’s mother’s house where it arrives at 22:34:02 and leaves again at 22:35:34, a stop of just one and a half minutes. 9. From there the vehicle headed up to the Elegant Tavern where it arrived at 22:39:18 and stopped for almost 12 minutes. After leaving Elegant at 22:51:35, the X-Trail drove to the Total garage arriving at 23:04:35. 10.  The stop at Total lasted 14 minutes and then the X-Trail drove a short distance down the Main Road where it stopped opposite Ingoma at 23:16:34. This coincides with the CCTV footage of the accused and his wife crossing the road outside Ingoma. 11.  EXHIBIT CC reflects a short trip of 5 minutes when the vehicle left Ingoma and drove through the parking area of the SuperSpar which is on the western side of town. It idled there for less than 30 seconds and returned to Ingoma. 12.  The vehicle leaves Ingoma at 01:08:54 and drives to the accused’s home where it idles at 01:22:48 for about one and a half minutes. The X-Trail departs for Plett stopping briefly for 15 seconds at Green’s Tavern en route and arriving outside S’khulu’s Lounge in Sishuba Street at 01:43:44. There it stays for 41 minutes and at 02:24:54, it heads off to the Spotlight night club in the industrial area to the west of Plett without stopping en route. 13.  The X-Trail stops at Spotlight at 02:35:04 for almost an hour. It then leaves at 03:32:53 and stops at the taxi rank just off the N2 at the top of Piesang Valley Road at 03:37:20 for 17 minutes. It travels back down the N2 to Spotlight where it stops briefly for 5 minutes at 03:59:18, before heading off at 04:04:36 for Knysna. 14.  The trip along the N2 is undertaken at a hectic pace with speeds of around 140 - 149 kph along a stretch of road that is mostly limited to 80 kph and occasionally 100 kph. 15.  En route back from Plett, the X-Trail idles outside a spaza shop called Sisonke at 04:24:31 for two and a half minutes and then idles again outside the home of the accused’s mother for 4 minutes at 04:34:13. 16.  The vehicle arrives back at the accused’s home at 04:43:05 and idles for almost 4 minutes before setting off for the deceased’s house at 04:46:52 where it arrives at 04:47:51. 17.  After a stop of just over two minutes, at 05:00:18, the X-Trail leaves the deceased’s house and drives directly to the Denron site as I have already described. [171]  The State does not accept the accused’s explanation for the second set of trips which I have just described. I shall deal with this during the discussion of the accused’s case later. [172]  That concludes the discussion of the critical parts of the State’s case. I have not discussed much of the evidence that forms part of the admissions made by the accused in EXHIBIT B for that is common cause and is, as I have said, part of the record. [173]  The State’s case is based entirely on circumstantial evidence. That having been said, I consider that the case put up by the State has the following aspects which are compelling and would admit the application of the maxim res ipsa loquitur , that is, the facts speak for themselves: 1.  Firstly, the vehicle rented by the accused leaves the deceased’s house at 05:00 and drives directly to the Denron site where it stops for 18 minutes. 2.  At the Denron site, the police subsequently recovered two empty Brutal Fruit bottles and their plastic wrapping. It is common cause that this is one of the accused’s preferred beverages and an empty can of the same cider was found in the X-Trail later that morning. 3.  It is common cause that the vehicle rented by the accused, stops at the body scene, which is not far from the Denron scene, where it idles for two minutes at 05:50, then moves off and drives slowly back past the body scene twice. 4.  The blood of the deceased is later found in the rear of the rented vehicle. I turn next to a discussion of the legal principles applicable to criminal cases in general and to circumstantial evidence in particular. THE APPLICABLE LAW The General approach . [174]  It is trite that the State bears the onus of proof to establish beyond reasonable doubt that the accused is guilty of the crimes with which he has been charged. This does not mean beyond any doubt and if the accused’s version of events and his defence based thereon can be said to be reasonably possibly true in the circumstances, he is entitled to his discharge. The test was described as follows in S v Van der Meyden 1991 (1) SACR 447 (W) at 449j-450b: "The proper test is that the 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 of it might be found to be only possibly false or unreliable but none of it may simply be ignored." [175]  In this case there is no direct evidence that the accused murdered the deceased and there are consequently no eye-witnesses who can testify thereto. The State has relied on circumstantial evidence and asks the Court to infer from such evidence that the guilt of the accused has been established beyond reasonable doubt. CIRCUMSTANTIAL EVIDENCE [176]  In applying inferential reasoning, the Court is required to have regard to the cumulative effect of all the evidence. It is not permissible to take the evidence piece by piece, evaluate it in isolation and accept or reject it. In R v de Villiers 1944 (AD) 493 at 508, the Appellate Division suggested the following approach: "The Court must not take each circumstance separately and give the accused the benefit of any reasonable doubt as to the inference to be drawn from each one so taken. It must carefully weigh the cumulative effect of all of them together and it is only after it has done so that the accused is entitled to the benefit of any reasonable doubt which it may have." [177]  One must be careful not to confuse inference with assumption. In S v Naik 1969 (2) SA 231 (N) at 234, the Court referred to an earlier dictum of the House of Lords in England, ( Caswell v Duffryn Associated Collieries ) [1939] 3 All ER 722 at 733) which cautioned as follows: "Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture." [178]  The fact that the Court is required to apply inferential reasoning in assessing an accused’s guilt or innocence, does not necessarily imply that such evidence is weaker than, or inferior to, direct evidence. Indeed, in S v Musingadi and Others , 2005 (1) SACR 395 (SCA) 20, the Supreme Court of Appeal quoted with approval the following extract from the leading text book of evidence, The South African Law of Evidence by Professor Zeffertt: "Circumstantial evidence is popularly supposed by the layman to be less cogent than direct evidence. This is, of course, not true as a general proposition. In some cases, as the courts have pointed out, circumstantial evidence may be the more convincing form of evidence. Circumstantial identification by a fingerprint will, for instance, tend to be more reliable than the direct evidence of a witness who identifies the accused as the person he or she saw. But obviously there are cases in which the inference will be less compelling and direct evidence more trustworthy. It is therefore impossible to lay down any general rule in this regard. All one can do is keep in mind the different sources of potential error that are presented by the two forms of evidence and attempt, as far as this is possible, to evaluate and guard against the dangers they raise. " [179]  In S v Reddy and Others 1996 (2) SACR 1 (A) at 9c, the Supreme Court of Appeal recited with approval the following passage from the English text book, Wills on Circumstantial Evidence : "Now, circumstantial evidence varies infinitely in its strength in proportion to the character, the variety, the cogency, the independence, one of another, of the circumstances. I think one might describe it as a network of facts cast around the accused man. That network may be a mere gossamer thread, as light and as unsubstantial as the air itself. It may vanish at a touch. It may be that, strong as it is in part, it leaves great gaps and rents through which the accused is entitled to pass in safety. It may be so close, so stringent, so coherent in its texture, that no efforts on the part of the accused can break through. It may come to nothing. On the other hand, it may be absolutely convincing. The law does not demand that you should act upon certainties alone…In our lives, in our acts, in our thoughts we do not deal with certainties in: we ought to act upon just and reasonable convictions founded upon just and reasonable grounds. The law asks for no more and the law demands no less." [180]  Finally, in S v Hadebe 1998 (1) SACR 422 (SCA) at 426e-i, the Supreme Court of Appeal quoted the following passage from the Lesotho Appeal Court in Moshephi and Others v R LAC (1980-1984) 57 at 59F-H regarding the application of the test for assessing circumstantial evidence: "The question for determination is whether, in the light of all the evidence adduced at the trial, the guilt of the appellants was established beyond reasonable doubt. The breaking down of a body of evidence into its component parts is obviously a useful aid to a proper understanding and evaluation of it. But, in doing so, one must guard against a tendency to focus too intently upon the separate and individual parts of what is, after all, a mosaic of proof. Doubts about one aspect of the evidence led in a trial may arise when that aspect is viewed in isolation. Those doubts may be set at rest when it is evaluated again together with all the other available evidence. That is not to say that a broad and indulgent approach is appropriate when evaluating evidence. Far from it. There is no substitute for a detailed and critical examination of each and every component in a body of evidence. But, once that has been done, it is necessary to step back a pace and consider the mosaic as a whole. If that is not done, one may fail to see the wood for the trees." [181]  Lastly, I need to mention an important issue which must be considered in the evaluation of evidence. That is, the failure of an accused to challenge by way of cross-examination evidence presented by the State. In President of the Republic of South Africa and Others v South African Rugby Football Union and Others , 2000 (1) SA 1 (CC), (a case usually referred to as SARFU ) the Constitutional Court stressed the importance of this duty and the consequences of the failure to observe it. "61.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. This rule was enunciated by the House of Lords in Browne v Dunn and has been adopted and consistently followed by our courts... 63.  The precise nature of the imputation should be made clear to the witness so that it can be met and destroyed, particularly where the imputation relies on inferences to be drawn from other evidence in the proceedings. It should also be made clear not only that the evidence is to be challenged but also how it is to be challenged. This is so because the witness must be given an opportunity to deny the challenge, to call corroborative evidence, to qualify the evidence given by the witness or others and to explain contradictions upon which the reliance is placed." [182]  Adherence to the SARFU principles serves an important function in ensuring fairness in criminal proceedings. If an accused wishes later in the presentation of his case to adduce evidence which tends to contradict that put up by the State, he must give notice thereof during the State case by applying the approach in SARFU . Once he does so, the State is alerted to the defence’s version of events on that particular point and it may then seek to counter the accused’s version by leading further evidence as part of the State case. Should the defence not do so and only erase the countervailing facts during the presentation of its case, the State is hamstrung, are not being put in a position to counter that evidence. That renders the proceedings unfair towards the State. [183]  There is a further potential consequence of failing to adhere to the SARFU principle and that is that the State would be entitled to put it to the accused that he has changed his stance or evidence on a particular issue and it will be entitled to argue that the accused should be discredited as a dishonest or unreliable witness. [184]  In the result, failure to challenge the evidence put up by the State has implications for fairness in the proceedings for both the State and the defence. At the commencement of this trial, the accused was advised by the Court to ensure that he gave his attorney proper instructions and to challenge any allegation by a state witness with which he did not agree. THE DEFENCE CASE [185]  As foreshadowed in the overview that I gave at the beginning of this judgment, the accused’s case shifted in response to the State witnesses. Initially he denied any knowledge or involvement in the kidnapping and killing. Then, for example, in response to Captain Joubert’s evidence about the blood in the boot, the accused suggested that the deceased may have cut his hand while changing the tyre and that this must have accounted for the blood. [186]  Later, the accused suggested that he was intoxicated in the early hours of the morning to the extent that he could not recall certain events, in particular, the fact that he stopped at the deceased’s house at 06:11 for more than an hour after the body had been dropped. And then it was apparent his attorney simply did not have any instructions to challenge aspects of the evidence. So when the Court pointed out to Ms Luterek that she had not dealt with Mr Stander’s evidence regarding the short stop at the deceased’s house at 04h57, she acknowledged that she had not done so and did not seek to take a further instruction from the accused, nor did he seek to draw any to her attention. [187]  As I have noted, at the close of the State case, the accused was permitted to make an application in camera for leave to present his evidence in camera . In that application, the accused said that he wanted to testify in this matter "and in the process implicate other persons who are also involved in this matter." He went on to say that he had already been warned by these people that if he should name them, the lives of his wife, child and himself would be in danger. In the result, the Court ruled in terms of Section 153(1) of the Criminal Procedure Act that it was in the interests of the administration of justice that the accused be permitted to testify in camera . In so doing, he expressly waived his right to a public trial under Section 35(3)(c) of the Constitution and for 5 days the public were excluded from the Court room. [188]  The accused also led the evidence of two of the women in his life but this testimony was given in open Court. At the conclusion of the case, Ms Luterek agreed with the Court that the names of the people whom the accused had implicated, should not be anonymised in this judgment. They will thus be referred to in full all by their nicknames where necessary. Here then is the accused’s version: EVIDENCE-IN-CHIEF [189]  The accused testified that he needed to make some extra money so as to be able to afford a hearse for his undertaker’s business. He was aware of some of the kingpins in the local drug underworld and he decided to approach them. This, he said, was in Easter 2020. That was right in the middle of the Covid-19 lockdown. [190]  The accused said he met with Allistair Galant (who was known to him as Ali), Vusumzi Gungu (who he knew as Mavusi), Yonela Best and Khaya Adonis and it was agreed that he would become involved in their drug distribution network. They made it clear to the accused that once he was in, there was no way out. [191]  Thereafter, said the accused, he became part of the drug network. He claimed it was well-known in Knysna that this network was run by Mavusi and that its tentacles reached into the police force, the prisons and even the courts. [192]  With respect to the deceased, the accused said that they had been friends for about two years before his arrest. Their friendship centred around drink and little else. The accused stayed over at the deceased’s BnB on occasions, sometimes as a paying guest and other times for free. The deceased affectionately called him "Master" even though the accused was about 15 years his junior. [192]  The accused did not know the deceased’s estranged wife, P[...], and really only knew the children by sight when he visited there. The accused said that about three to four weeks before the deceased’s death, he, Ali, Mavusi and Khaya met at Ali’s flat. The accused said that he was told of an arrangement to kill the deceased and that he had been chosen to do the job because he was close to the deceased. [194]  Khaya produced two firearms; a revolver and a pistol and told the accused to choose his firearm of preference. He went for the pistol. At that stage, Mavusi told the accused that he had already received payment for the killing of the deceased. The accused told the others that he did not think he would be able to do it but that if he was full of drink, he might be able to do it more easily. [195]  The accused says that he was told that the killing had to take place before the weekend of 14 January 2022 and he accepted that he had to do the job as he believed he could not argue with his drug friends. Nevertheless, he says he prevaricated because he did not have the heart to shoot his friend. [196]  Turning to the weekend of 14 January 2022, the accused’s version of the Friday night is more or less the same as he gave to Sergeant Xokozela during the interview on Friday, 21 January 2022 save that he did not mention to Xokozela that his young lover, Nicky, had spent the night with him at the BnB. When asked in chief in regard to the story about the tyre on the X-Trail, the accused fumbled about and he could not give a coherent explanation. [197]  First, it appeared as if the tyre had been damaged on the rim; then there might have been problem with the rim itself and, ultimately, it was a tyre without a rim. The accused said that on the Saturday morning, Heils came to collect the Nissan and drove off with it. He and the deceased walked down to Mamma China and asked to borrow her black Mazda. [198]  Then said the accused, he drove down to his office where the receptionist opened up for him so that he could check whether any money had come in. He went to his office, opened the drawer and took out the 9mm pistol which was wrapped in a cloth. Then he and the deceased set off for The Crags, taking with them a stretch tent and covers for chairs at the grave side. [199]  At the cemetery, he and the deceased sat around while he, the accused, smoked a hookah pipe. They saw the employees arriving in their respective vehicles and then they had to leave for Knysna because Mamma China had been calling and asking for the return of the Mazda. They travelled back to Knysna and as they were driving up the road to Mamma China’s, the accused stopped and dropped off the deceased near Magadla’s Tavern. [200]  When they arrived at Mamma China’s house, she asked the accused to help her convey certain equipment to Mavusi’s house in Bongani where there was to be a welcoming ceremony for a returning initiate. He obliged and once there, she asked him to go and collect some chairs at a nearby hall. The accused said that at the hall he ran into Mavusi who called him aside and told him to accompany him to Nellie’s Tavern which evidently belongs to Mavusi. [201]  The accused says that he was told that a hitman from PE would arrive later that day, sometime between 4 and 6 pm and that the assassination of the deceased would take place that evening. The accused says he told Mavusi that he intended taking his wife out that night because they hadn’t been out for a very long time due to a young baby in the house. [202]  Mavusi castigated the accused and told him that because he did not have the heart to kill the deceased, it had been necessary to hire a hitman from PE. The accused said that he drove back to Mavusi’s house and collected Mamma China and then drove down to Sanlam where he intended to meet his workers. [203]  At that stage someone pointed out damage to the bumper of the Mazda and an attempt was made to repair it with cable ties but to no avail. As he alighted the car at Sanlam, the accused said he took his firearm out of the cubby-hole wrapped in a bag and walked to the X-Trail. When Mamma China noticed this, she was angry and admonished the accused for carrying a firearm in her vehicle. [204]  The accused said that he and Heils drove up to his house in the X-Trail while Pietersen followed in the Ford. After he had paid the two men for their day’s work, they left. The accused said that he then hid the firearm away behind a wardrobe in the house to conceal it from his wife. Then he got into his car and drove to Hornlee to collect his wife who had overnighted with her grandmother who was very ill. Having picked her and the toddler up, he headed to town, he said, to have the car washed. The wash bay behind Pick ‘n Pay was closed and so he decided to drive up to the Total garage to refuel. He said that at that stage it was just him, his wife and the child in the car. [205]  Thereafter, said the accused, he drove home because his wife wanted to wash and get dressed. They thereafter took the baby to his mother’s house where his sister was to take care of him. This was at a point described in the evidence of Mr Stander as the Y split and is depicted on the photograph in paragraph 4.8 of EXHIBIT CC. Then the couple drove down to Seun’s car wash which is located opposite the tyre shop which can be seen on the photograph in paragraph 4.9 of EXHIBIT CC. While the car was washed, the couple sat around and chatted. [206]  The accused said the car was not dirty on the inside and asked only that the exterior be washed because he was in a rush to get to the picnic site at Leisure Island. He denied that there was any firearm stored in the back of the car but he referred to the evidence of Matlala that there was braai equipment and the like in the back of the car. [207]  The accused said that they then drove down to the East End Kwik Spar where he stopped to buy alcohol, ice and snacks. From there they went on to the picnic site. According to the tracker, this was around 19.23. He parked his vehicle close to the toilet building and took out a portable barbecue which he erected alongside the car and filled it with charcoal. After preparing the meat, the couple shared it together with some law enforcement officers from the municipality who joined them. The accused said that although they had stayed until after dark - the tracker reflects this as 22:05 - they were able to barbecue because there was adequate lighting, so he said. [208]  The couple left for home and stopped there briefly to unpack the braai equipment. Then he said they left for his mother’s place to check on the baby and started their evening of club-hopping. The first port of call was at the Elegant Tavern where they stopped for 12 minutes. Thereafter, they went down to the Total garage to make use of the toilet facilities, stopping for approximately 10 minutes. The accused said it was only him and his wife in the car. [209]  From there they went to Ingoma where they enjoyed themselves and asked DJ Bird to take a photograph of them. While at the club, the accused said he slipped out to drive to the autobank near the Super Spar where he stopped briefly to draw money. Thereafter he went back to the club and he and his wife stayed there till 01.08 when they set off for Plett to continue the evening’s fun. DJ Bird was not interested in joining them. [210]  When asked about the fact that the car had stopped outside their house at 01:19, the accused said he had no recollection of that. Regarding the 15 second stop at Greenhouse while travelling down the Uniondale road, the accused said that he contemplated stopping there but his wife did not like the place and so they drove on to KwaNokuthula near Plett. There they stopped at a tavern known as S’Khulu’s for about 45 minutes where the accused produced two bottles of sparkling one and literally popped the corks. He said that he was drinking the whole time that evening including Hennessey cognac, red wine and Brutal Fruit because he preferred to start “soft in the beginning” [211]  The accused said that the couple then left for Spotlight where they arrived at 02:35 and met up with his cousin Dylan Bezuidenhout and his friends. His wife, he said, spent most of the time playing the slots while the accused splurged on tequilas for Dylan and friends. While at Spotlight, the accused said he received a couple of phone calls from Dylan regarding a prospective drug deal with a man who was near the taxi rank. He drove there to discuss the wholesale supply of Mandrax tablets. The men exchanged phone numbers but nothing came of it. [212]  The accused said he received another call from Dylan telling him that he should not leave his wife alone and so he returned to Spotlight, picked her up and they drove back to Knysna at high speed. On arrival, they went to his mother’s house where he collected the child and the baby sitter and dropped them off at his own house. [213]  The accused said that he then went to the deceased’s house. He claimed that he wanted to drink with the deceased in the hope that he was still alive. The accused said that as he approached, he saw a white bakkie standing there with CG number plates on. He pulled his car into the driveway and as he walked around the front of the X-Trail, he saw someone standing at the top of the stairs. He went up and entered the breakfast area where he saw the deceased lying on the floor with his hands tied behind his back. [214]  Also there in the breakfast area, were Mavusi, Khaya, Yonela, (whom he described as one of Mavusi’s “spanners” who did the dirty work), the hitman and the woman from PE. The accused said that when he asked what was going on, Mavusi was very aggressive, demanded his car keys and told him to open the boot of the X-Trail, all the while the deceased was pleading for help and calling his name- "Master! Master!". [215]  The accused rather sanctimoniously claimed that if he had not arrived in the X-Trail, the deceased would have been taken off in the white bakkie and no-one would have known who killed him. In any event, the accused says the deceased was guided down the stairs, his hands tied behind his back and with the hitman behind him, brandishing a 9mm pistol. The deceased was placed in the back of the X-Trail and Mavusi then told the accused to go and knock on the door and ask the children where their father was. He says he did this and then returned to the X-Trail. [216]  Mavusi then drove the vehicle. There was no one in the front passenger seat and the accused sat at the back between Yonela and the hitman while Khaya drove the white bakkie. The accused said he then realised that Khaya was driving his own bakkie with false number plates. [217]  When asked by his attorney whether he had made a phone call at this stage, the accused said it was all happening so fast that there was no time to do so. All the time he said, the hitman kept pointing the firearm at the deceased who was in the boot area of the X-Trail. [218]  The accused said that Mavusi then drove straight to the Denron scene where the deceased was pulled out of the vehicle and the others began assaulting him with their fists, the butt of the pistol and by kicking him on the head. The hitman wanted to shoot the deceased but Khaya said he should not. At that stage the deceased’s mouth and legs had not been bound and the bag was not yet placed over his head. [219]  The accused said that when he remonstrated with them not to hurt the deceased further, Khaya told him there was nothing he could do. It was then decided that they needed rope and so the party set off in the two vehicles again, seated as before with the deceased in the boot and the woman from PE in the bakkie with Khaya. [220]  They travelled down the R339 to Mavusi’s tavern, Nellie’s, which the accused said is nearby the Khadafi shop, seen in the photograph at para 5.11 of EXHIBIT CC. There Yonela alighted and went to fetch rope and two spades from behind the tavern. He returned with a black refuse bag which he gave the hitman. The accused said that they then set off again and did not go to the Bokkoppie Road but down the 339 in the direction of the N2. [221]  There was talk of going to Hornlee but then somebody said it was getting light and the accused said Mavusi turned the vehicle around and headed back up the 339. Once on the Bokkoppie Road, the accused said the bakkie was already parked in the road and they stopped. The deceased was pulled out of the vehicle and he landed on the ground. The accused said that Mavusi then told him to drive off with the X-Trail and warned him in a threatening manner not to talk about what had happened. [222]  The accused says he climbed over onto the driver’s seat and obeyed the instruction. He panicked and drove off straight down the road. By that time said the accused, the deceased had not been strangled, no wad of cloth had been placed in his mouth and the black bag was not yet over his head. In his panic state the accused called his female friend called Nicky. He is not sure whether the call was answered and he drove down towards Sanlam not knowing what to do. Eventually he landed up at the deceased’s house, hoping that perhaps the killers would bring the deceased back alive. [223]  He says he stopped there for more than an hour and at one stage went and knocked on the door of the deceased’s house and asked the children if their father was there. He says he also walked home to change his clothing and found that his wife and children were still asleep. He changed into a cobalt blue shirt, slippers and his long pyjama pants which he said was his favourite comfortable clothing. [224]  Then the accused said he drove down to the Total garage where he stopped for 58 minutes wondering just what had happened. He was very distressed and he fell asleep. The accused confirmed the CCTV footage taken at the Total and Shell garages. He identified the driver of the black Polo as Themba who worked at Brenton Blu as a staff driver. The accused said that Themba usually leaves his car at the Shell station when he drives the staff vehicle which is the Quantum mini bus seen on the video. [225]  The accused also saw the owner of Elegant, known to him only as “Z” with his white Polo which features on the video of the Shell garage too. The accused said he was not satisfied that the cleaner had done a proper job of the boot and he went to ensure that she did. [226]  Eventually, said the accused, he drove home and accepted that he arrived there at 10:36 and that the vehicle remain switched off until 16:45. The accused could not give any details of where he drove on the Sunday afternoon and could not recall whether he went back to the deceased’s house. During the course of the Sunday afternoon, the accused claims, Mavusi and Yonela came to his house and threatened with death should he talk or go to the police. [227]  The accused said that they told him that they had had to get rid of the deceased but they did not say how or where. Mavusi also showed the accused a photo of the deceased on his phone. At that stage, the bag was not yet over his head. The accused said that he told Mavusi about the events of the Friday night and the story about the tyre, in particular whether the deceased had changed the tyre or not. He said Mavusi told him to stick to that version. He also says that he returned the firearm to Khaya about two weeks later. [228]  As regards the events of the next week, I shall only touch on the most relevant aspects. The accused says he went to the deceased’s house on the Monday morning to ask for the tyre. This was to keep up the pretence about the relevance of the tyre in regard to the Friday night. The children pointed out a tyre in the kitchen and he took it. Later in the day the accused says, he got a call from P[...] asking whether he knew of the accused’s whereabouts. He stuck to the story that he last saw him near Magadla’s on the Saturday. [229]  When P[...] asked him for Khaya’s number, he said he gave it to her. In relation to the delivery of the car to Thrifty on the Tuesday morning, the accused said he could not recall how he got back to Knysna. By the Tuesday, the local community was very angry about the death of the deceased and the accused was called to a meeting in a community hall. He stuck to his version about when last he saw the deceased and denied the allegation that he was seen leaving with him at the deceased’s house. [230]  The accused said that in the first week after the death of the deceased, the community was very aggressive towards him because of the continuous story that he was seen leaving the house with the accused. Sgt Xokozela warned him that his safety and that of his family was in danger and so he and his wife and child moved out at short notice and went to stay with her family in Hornlee. Heils was later allowed to stay in the accused’s house. [231]  The accused said he followed up various avenues in an attempt to get advice on how to expose the real perpetrators of the killing including speaking to a cousin in the police and a prosecutor in George. He also sought advice from his erstwhile attorney, Mr Bans, but was unable to do anything. He attributed the problem to the fact that Mavusi, Khaya and Ali were well connected in the town and had some influential people in their pockets. CROSS-EXAMINATION [232]  The cross-examination of the accused by Mr Badenhorst, was long, thorough and probing. It exposed the accused, firstly, as dishonest, which of course he is by his own admission. He lied to the children, he lied to P[...], he lied repeatedly to Sgt Xokozela, he lied to his former attorney, he misled the Court during the bail application and of course he did not take Ms Luterek into his confidence either. [233]  The Court has great empathy for the predicament Ms Luterek found herself in as her instructions changed from time to time and the Court would like to compliment her for the thoroughly professional way in which she represented her client. But not only was the accused shown under cross-examination to be dishonest, he was also shown to be scheming and manipulative. He truly trimmed his sails to the wind as he was required to navigate his way through a storm that descended upon him. [234]  The net result is that the accused has fallen foul of the caution that was given to him at the start of the case and he has placed himself in that category of criminal litigant that the Constitutional Court warned about in the SARFU case. And so, as the prosecutor put it to the accused under cross-examination, just what parts of his evidence can we begin to rely upon? I do not propose to traverse the cross-examination in any detail, it is all a matter of record but there are certain aspects which I wish to discuss which go to the core of the matter. [235]  Firstly, the accused ultimately accepted that the tyre story was a complete ruse. There was never any problem with the tyre on the X-Trail, it was capable of running and no tyre was ever changed or repaired. The tyre given to him on the Monday by the children had, according to W[...], being lying in the house for a number of days before the weekend and it is obvious that the accused sought to create a fiction around it, possibly to justify the borrowing of a third vehicle from Nomachina. [236]  Secondly, the accused was unable to give any plausible reason for fetching the firearm from his office on the Saturday morning. Maybe he knew that the deadly plan that he had agreed to implement three weeks before was to be executed that weekend? The suggestion by the prosecutor that he may have intended to shoot the deceased at The Crags or en route in pursuance of his mandate of three weeks before, is, in my view, not beyond the realms of speculation. [237]  Thirdly, the inability to recall who took him through to Thrifty on the Friday to collect the X-Trail is problematic and suggests he was protecting someone. So too his inability to remember how he got back after dropping the car off on the Tuesday. [238]  Next, the inability of the accused to recall under cross-examination the reason for the protracted stop of 45 minutes at the Total Garage between 4 and 5 o’clock on the Saturday afternoon is problematic. This is made all the more difficult to understand if regard is had to the cell records which show that from 15:25:29 until 16:44:59 no less than 15 calls on 1[…] were forwarded. [239]  Why was the accused not answering his phone? And why were all those unanswered calls bouncing off the Bongani Village tower? It must be that the phone was not in the car. And why was the accused’s wife on 8293 calling him on 1793 at 16:41:02, also a forwarded call, if she was in the car with him at the Total Garage? These facts raise serious doubt about the accused’s allegation that he was in the car at the Total Garage that afternoon. [240]  Then the accused was unable to explain why his wife called him when they were allegedly together when he stopped at the KwikSpar, ostensibly to pick up drinks and snacks for the braai at Leisure Island. On that score the prosecutor fairly questioned whether the accused did in fact braai at Leisure Island given that he switched off his phone for the entire duration of the period he was allegedly there. [241]  The prosecutor fairly questioned too whether the parking of a car in such a public space was not part of the camouflage operation put up by the accused to place himself elsewhere when he knew that the attack on the accused was planned for just that time. As will be seen later that suggestion by the prosecutor gained traction when the accused’s wife failed to adequately back up his evidence about the braai at Leisure Island. [242]  Then the prosecutor focussed on various telephone calls which the accused made at crucial times and which he was unable to properly explain. 1. Firstly, there is the number 0[…], (that is 3[…], or "the Nicky number"), which the prosecutor noted was called by the accused at certain crucial times, often in conjunction with calls to other persons of interest. The accused said that this was the number of his secret teenage lover, Nicky. He said that the phone actually belonged to her father and that when he wished to speak to her, he had to call her via her father. Just how her father responded to this situation is not clear. 2. But most importantly, the prosecutor noted that the Nicky number was dialled by the accused as the X-Trail was speeding towards the body scene. He was allegedly wedged between Yonela and the hitman at the back of the car, yet he had the opportunity to make a three second call at 05:47:08, just before the body drop at 05:50:17. What was this call about? The accused could not explain. 3. There were several Nicky calls while the accused was at the Shell carwash on the Sunday morning and later between 16:00 and 17:00 on the Sunday afternoon. Once again, no explanation was forthcoming. [243]  The prosecutor pointed out to the accused that there were calls to Ali and Khaya shortly after the Nicky calls on the Sunday afternoon and suggested that the Nicky number was not that of his secret lover but someone closely associated with the murderous plot. The accused denied this but he could not give any reason for the calls. So too a batch of Nicky calls between 14:00 and 15:00 on the Saturday afternoon and contemporaneous calls to his henchmen. [244]  But all of this blew up in the accused’s face when Nicky was called as the second defence witness. Having maintained steadfastly on the first day of her testimony that she had had the phone with her all the time on the Saturday, and received the alleged calls from the accused, when she returned to complete her cross-examination the following morning, she changed her tune completely and said that she had suddenly remembered overnight that the phone had been stolen on the Friday night when she and the accused overnighted at the deceased’s house. She was thus unable to tell the Court in whose possession that number was on the Saturday or the Sunday, nor what the call on the way to the body scene was about. This late development in the case created huge problems for the accused’s credibility, which was further dented. [245]  The accused admitted under cross-examination that there were certain activities in public places which were critical to demonstrate that he was not involved in the crimes allegedly committed between 22:00 on the Saturday and around 04:00 on the Sunday. Hence his insistence that he was barbequing at a municipal facility between 19:30 and 22:00 on the Saturday night. So too his visits to Elegant, Ingoma, S’khulu’s, and Spotlight allegedly with his wife. [246]  But none of those occurrences offered him an alibi for the deceased departure from his home that night shortly before 22:30 and the subsequent events at the Denron and body scenes. As far as using the picnic at Leisure Island as an alibi is concerned, the accused made the fatal mistake of switching off his phone for the duration of that time. He said he did so because he did not want to be bothered while he devoted all his attention to his wife that night, but that explanation came unstuck when he switched it on later while they were club hopping. [247]  The accused admitted under cross-examination that the picnic site was an important strut in his partial alibi defence. That strut too was dismantled when Ms Virginique Bezuidenhout, his wife, was called as the first defence witness. On the first day that she testified her demeanour was bright and chirpy and engaging, and she had all the answers, no doubt following the playbook which the accused had created way back in January 2022 when she was required to give a statement to Sgt Xokozela. But when she testified, she gave details of the braai which conflicted directly with the accused; where did they barbeque, how did they barbeque, did they eat anything. She said they ate nothing; and whether they shared any of their food with others. That evidence too casts a serious shadow over the accused’s credibility. [248]  So too Ms Bezuidenhout’s evidence regarding the jaunt to Plett. What and where they drank, the fact that the accused was not away from Spotlight for 20 minutes when he went to the taxi rank; and the fact that the accused stopped to vomit on the way to Spotlight, when the tracker does not reflect any idling between S’khulu’s and Spotlight. [249]  But Ms Bezuidenhout too was a different witness on the second day of her testimony. Whereas she had all the answers and facts at her fingertips on the first day, which was a Friday before a long weekend, when she returned on the following Wednesday she was withdrawn, sullen, and uncooperative with her answers; a simple rote: "I do not know, I do not know". Overall Ms Bezuidenhout’s evidence made a serious dent in her husband’s credibility. [250]  At no stage in his evidence did the accused deal with one of the most obvious questions in this case: why did M[…] K[...] have to die? He testified in chief that he was called to a meeting with his drug henchmen and simply told that he was to kill the deceased. He agreed without more. But this was his friend, his drinking buddy, the man who provided a safe haven where he could commit adultery with a woman very much his junior. Why did he not refuse, or at the very least, ask the reason for this instruction that would make him a killer liable to prosecution for a life sentence? [251]  After a week in the witness box and at the very end of his evidence the Court asked him why. He stumbled about and gave an incoherent answer: Mavusi said he wanted the house; the money had already been paid to Mavusi; it was something about the house. The answer was not only incoherent, but illogical. Why would Mavusi have been paid for a house he wanted? Surely it was Mavusi who would have had to pay the assassin. And then of course the most obvious observation of all: the deceased was killed two and a half years ago, but Mavusi still does not have the house. [252]  When the evidence of the accused is viewed overall it has to be said that he was a very, very poor, dishonest and manipulative witness. The prosecutor correctly argued that the accused sat back, said very little of his own version by way of cross-examination during this the State case, and then when he knew the full extent of the pitfalls it presented, he crafted a version which he sought to fit in with the established facts. He said he feared for his life and was granted the protection of an in camera hearing; and then he said nothing which implicated him in any of the crimes. EVALUATION OF THE WITNESSES [253]  Most of the evidence of the State witnesses is uncontentious and there is little criticism that can be directed at them. The Court was concerned about the absolute coincidence implicit in Sgt Mashaya’s evidence. That he happened to stop at the very place where the body had been dumped, and that in a forest where there would ordinarily not be pasturage for cattle, as Mr Stander noted, seemed passing strange. [254]  For that reason, the Court called him back and questioned him further. His demeanour then was arrogant. Why was his word being questioned? He had already testified about this. I therefore agree with Ms Luterek that Mashaya might have been tipped off about the body scene by a source, or maybe there was some loose talk in taverns in the township. But, in the greater scheme of things, that has no impact on the guilt or innocence of the accused. [255]  I believe that the evidence of Heils too must be approached with some caution because of his description of the trip in the X-Trail to The Crags. It does not accord with the tracker records. He spent more time in and around Plett and KwaNokutula than he spoke of, and when he was recalled, he was unable to explain these discrepancies. It is not inconceivable that his employer, the accused, might have discussed his evidence with him before he gave the police his statement. [256]  The evidence of Botman is rightly questionable to the extent that he says that he saw three persons in the X-Trail that Saturday night and that the woman who walked to the toilet was not the accused’s wife, someone who was known to him. The tracker records for trip 54 show that the car made a short trip of 690 metres from the Shell Garage to Ingoma, where we know from the CCTV footage that only the accused and one female alighted from the car. However, as the prosecutor pointed out the vehicle did idle for a total of 10 minutes and 43 seconds on that short trip, and so the possibility of a third person having alighted from the vehicle en route to Ingoma cannot be excluded. [257]  The evidence of the K[...] siblings is a critical piece in the mosaic because they pinpoint the time of the deceased’s departure from the house. I have already commented about my impression of them as young people who have had to deal with such a traumatic experience at a critical time in their lives. As witnesses they were excellent. Young U[...] was direct and emphatic in her answers. She would not just say: "I don’t know". Rather she would say: "I do not know". [258]  W[...] was equally impressive as a witness. He is intelligent and has an engaging personality. He asked for clarity if he did not understand a question, and he strikes one as a young man with true leadership potential. The only criticism that might be levelled at W[...] is his remark initially that the visitors arrived around 20:00 to 22:00 that night and his correction of that time later to "10-ish". [259]  His use of language around time was noted to be casual, as one hears from so many young people these days. He conflated afternoon with evening and give time estimates which were sometimes wrong. But this does not detract from his credibility and reliability as an eyewitness. He knew the accused, the lighting was more than adequate, the scene was static, and he had ample opportunity to observe him that night. [260]  In S v Mthethwa 1972 SA 766 (A) at 768 the Appellate Division described the test for observation of identity 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, the 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’s face, voice, build, 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." [261]  In my view, both W[...] and U[...] meet the requirements of the test in Mthethwa . They were good witnesses and the Court accepts their version of events as to when, and how, the deceased left his house that fateful night. [262]  I have already commented on the poor performance of the accused in the witness box and little more need be said on that score. Importantly though, the evidence of the accused is also that he was at the house in the company of the deceased. That is not disputed: it is just the time and the surrounding circumstances regarding the departure from the house that the accused places in dispute. In that regard. I consider that the version of the State witnesses is credible and reliable. [263]  The accused’s version on this point came at a stage when it was no longer possible for the State witnesses to be given an opportunity to comment thereon and it remains a matter of speculation what they might have said about the accused’s ultimate version. But that was the accused’s choice, he held back on his version until he entered the witness box, and he must bear the consequences thereof. That version sought to manipulate the compelling set of facts put up by the State which established a strong prima facie case against the accused. It was a last-ditch attempt by the accused to escape the inevitable but he failed hopelessly in that regard. THE OVERALL PICTURE [264]  The case law I referred to earlier requires the Court now to sit back and look at the bigger picture and see how everything fits together. At the beginning of this judgment, I set out the primary facts which fall to be determined. Having heard and considered all the evidence I come to the following conclusions: [265]  Firstly, it is not in dispute that the deceased was transported to the body scene in the silver X-Trail which the accused had rented from Thrifty. What is in dispute is whether the accused drove the car on that journey, trip 64. [266]  His version is that he was forced to travel in a car as a passenger after he had unwittingly stumbled upon a crime scene at 05:00 in the morning and he witnessed the deceased having been tied around the wrists and forced down the stairs at gunpoint. His defence is I suppose that he was compelled to participate in the crime. [267]  The question is whether this defence is reasonably possibly true in the circumstances. In my view, that conundrum is resolved by establishing just when the deceased left the house. [268]  I have already dealt with the evidence of the K[...] siblings. They pinpoint that evidence in relation to the missed call from the Mali phone and U[...]’s response thereto at 22:26:44. There can be no doubt that the Mali phone was in the breakfast area at that time. W[...] heard the deceased speaking and both children saw him there just after the call had been terminated. [269]  It is notable too that EXHIBIT Q shows that the Mali phone had been active until 18:59:27 that evening but thereafter remained inactive until 22:03:22 when a number of calls were made or received up to 22:48:48. Thereafter, the phone only became active again the next morning at 07:54:41. Throughout this time the handset of the Mali phone was in the vicinity of the Bongani Village water tower. [270]  The prosecutor adduced evidence to show that the cell phone with number 0[…], "9[…]" as I will refer to it, belonged to a woman known as Nokuthula Rasmeni, who was said to be close to Mavusi. EXHIBIT Q shows two calls made on the Mali phone to 9328, that is at 22:27:45 and 22:33:51. And this suggests communication between the person using the Mali phone, either still inside the breakfast area, or shortly after the phone had exited the deceased’s home, and someone known to be close to Mavusi. [271]  All of this points firmly to the fact that the deceased left the house at the time suggested by W[...], that is shortly after the call U[...] made to the Mali phone. There are further objective pointers to the departure at that time: [272]  Firstly, if the accused is to be believed, the deceased was held captive in his own house where his children were sleeping, for more than six and a half hours, during which time he was tied up by his kidnappers. [273]  Given the layout and construction of the house, it is highly probable that such activity would have been heard by the children, who would surely have investigated what was happening and probably raised the alarm. After all, this is what they did when they heard a car approaching shortly after 22:00. [274]  We know from W[...]’s evidence that he saw his father leaving, and that there was nothing about the manner in which he left the house that gave him cause for alarm. There can be little doubt that if the deceased had been frog-marched out of the house at gunpoint as the accused claims W[...] would have immediately raised the alarm. His evidence suggests that he is a vigilant type of young man and in the absence of his father, takes his role as the eldest sibling in the house seriously. [275]  In fact, even by the Sunday evening W[...] was not concerned enough about his father’s absence to start taking steps to establish his whereabouts. That only happened the following morning, the Monday, when the accused called to collect the tyre and was nonchalant about the absence of the deceased. Only then did W[...] realise that something was wrong and he then called his mother. [276]  There is thus no plausible reason to disbelieve the evidence of the K[...] siblings that the deceased left the house that Saturday night in the company of the accused, and the accused has advanced no reason either. As I have said, he has just manipulated the time and circumstances of the departure. [277]  Lastly, with regard to the accused’s allegation of everything that happened while he was at the house just before 05:00 on the Sunday morning, it is highly unlikely that a stop of just over two minutes would have been long enough to accommodate all of the activity deposed to: that is, the tying up of the deceased, the frog-marching of him down the stairs, the placing of him in the car, and then particularly given the allegation that after everyone was in the car and ready to leave, Mavusi told him to run back to the house, wake up the children and ask after their father. There was simply not enough time for all of this to have happened in the time that the tracker shows that the vehicle was stopped, which is just over two minutes. [278]  I am accordingly satisfied that the State has established beyond reasonable doubt that the deceased left his home at around 22:30, shortly after the Mali call, in the company of the accused, the bearer of the Mali phone, and some other unknown person, and was taken away in a black car. [279]  If the evidence about the braai is disbelieved, as I consider it should, then someone else drove the X-Trail back to the accused’s home on trip 50 that night. This would have put him in a position to have ready access to the deceased’s home as W[...] described. But even if the evidence about the braai is accepted as credible, trip 50 places the accused in the immediate vicinity of the deceased’s house at the time of the call to the Mali phone and corroborates W[...]’s evidence that he was there. [280]  In the result, the main strut of the accused’s version that the deceased was abducted at 5:00 in the morning at gunpoint, and that he was forced to participate in the kidnapping, is rejected as being not reasonably possibly true in the circumstances. [281]  Given the tracker evidence of the X-Trail’s movements thereafter to Elegant and the other places visited during the accused’s alleged club hopping, it is reasonable to infer that he did not accompany the kidnappers when they left in the black car - he went his own way in the X-Trail. And it is safe to infer that the deceased was held hostage by others whose identity is still unknown to this Court, until the accused linked up with them again at the Denron scene. [282]  The fact that the accused overshot the turnoff into the Denron scene suggests that he did not know exactly where the turnoff was. As to whether the deceased had been held hostage at the Denron scene only, or elsewhere before then, this is something that this Court cannot determine on the available evidence. [283]  But what is beyond reasonable doubt is that the evidence establishes that the accused drove the car that transported the deceased from the Denron scene to the body scene where was left for dead. 1. Firstly, the blood found by Captain Joubert in the back of the X-Trail confirms that conclusion. 2. Secondly, there can be no other reasonable explanation for the fact that the accused drove the X-Trail further along the Bokkoppie Road after the drop-off, turned around, and drove slowly back past the body, then went onto the R339, turned around again, and drove back past the body another time. The only conclusion that one can draw from that is that he was checking up to make sure that the deceased was not moving. 3. Thirdly, the accused’s conduct at the Shell Garage on the Sunday morning in ensuring that the boot of the X-Trail was thoroughly cleaned, demonstrates a keen desire to get rid of damaging evidence and suggests a guilty frame of mind. Further, under questioning by the Court, the accused admitted that he did his best to keep the police away from the X-Trail as long as possible so as to avoid detection of the deceased’s DNA. Had he not told Xokozela during the Friday interview of the colour and model of the car, he might well have succeeded in that exercise. [284]  Given the finding that the deceased was abducted at around 22:30 in the circumstances which I have already described there is no room for the accused’s contention that he acted out of fear for Mavusi. When he later drove the X-Trail from the Denron scene to the body scene he did so voluntarily and with the requisite mens rea . He knew that he was acting wrongfully and unlawfully. [285]  Turing to the question of where the deceased was assaulted, it seems unlikely that he was assaulted at the body scene given the short time that the car idled there. The probabilities rather suggest that he was beaten up, strangled and gagged elsewhere. Possibly at the Denron scene or somewhere else earlier, or possibly at both. The time spent by the accused at the Denron scene, 18 minutes, suggests that the deceased was not yet bound up, covered with the black bag and ready to be immediately taken away by the accused when he arrived there. [286]  But it is fair to infer in the circumstances that the deceased was at least further assaulted at the Denron scene, at the very least in the presence in the accused. In fact, the accused himself says so. Whether the deceased was already dead at the time he was dropped off cannot be determined conclusively. [287]  Dr Hurst said that the blows to the head would probably have rendered him unconscious given the fracture to the skull, but it is possible that the deceased was still breathing when he was left for dead by the accused. However, it cannot be disputed that the deceased’s attackers intended that he should die. That, after all, was their plan from the beginning; and when he was left in the forest he was bound up, strangled, gagged and covered with a bag to ensure asphyxiation in the event that his airways were not completely compromised. [288]  I can thus only conclude that the killers had the direct intention, dolus directus , to kill the deceased. COMMON PURPOSE [289]  The prosecution accepted that the accused did not act alone and that there were co-perpetrators responsible for the abduction and death of the deceased who are not before this Court. Not only is that submission accepted by the accused as the basis of his defence, the objective facts point to the clear involvement of others. [290]  The evidence of W[...] shows that the deceased left the premises in the company of the accused and two others, and it is obvious that while the accused was club hopping the deceased would have to have been detained elsewhere by other people. Lastly, it would have been difficult for just one person to have restrained the accused and tied him up. It was far more likely that there was more than one person involved in that activity. [291]  Furthermore, once the deceased had been immobilised by the blows to his head, it would have been difficult for one person to move around such a dead weight. The fact that the accused might not have physically participated in the assault on the deceased does to exclude him from criminal liability for this death. [292]  The accused says that there was a conspiracy concluded three weeks before the killing that he deceased would be killed and that he would be the assassin. He says he was offered a choice of firearms and he chose a 9mm pistol, which he kept for a further two weeks after the killing. [293]  It was agreed that he was the right person to do the job because of his association and friendship with the deceased, and accordingly he was able to facilitate the departure of the deceased from his home, and he then joined in at the end, possibly to participate in the assault, but certainly to assist in the disposal of the body. Whether that version is true or not the court does not know given the unreliable and untruthful testimony of the accused. [294]  But what is clear on an overall consideration of the evidence is that the murder of the deceased was planned and that there was more than one person involved in the plot. [295]  In Thebus and Another v S 2003(2) SACR 319 (CC), the Constitutional Court approved of the constitutionality of the doctrine of common purpose and explained the principle as follows: "16.  The doctrine of common purpose is a set of rules of the common law that regulates the attribution of criminal liability to a person who undertakes, jointly with another person or persons, in the commission of an offence. Burchell and Milton define the doctrine of common purpose in the following terms: 'Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for the specific criminal conduct committed by one of their number which falls within their common design. Liability arises from their common purpose to commit the crime.' 18.  Snyman points out that ‘ the essence of the doctrine is that if two or more people having a common purpose to commit a crime act together in order to achieve that purpose, the conduct of each of them in the execution of that purpose is imputed to the others .’ These requirements are often couched in terms which relate to consequence crimes such as murder. 19.  The liability requirements of a joint criminal enterprise fall into two categories. The first arises where there is a prior agreement, express or implied, to commit a common offence. In the second category, no such prior agreement exists or is proved. The liability arises from an active association and participation in a common criminal design with the requisite blameworthy state of mind.” [296]  The facts of this case fit perfectly into the first category of common purpose describe above by the Constitutional Court. And in my view the accused is accordingly liable to be convicted for his participation in the kidnapping and murder of the deceased on the basis of the application of the doctrine of common purpose. Lastly, the finding of the Court is that the murder was premeditated and the accused’s intention was direct in the form of dolus directus . [297]  As regards to the charge of defeating or obstructing the administration of justice, the accused conceded that his objective in the days following the murder was to keep the police away from examining the X-Trail as long as possible in the hope that it might become unavailable for examination by the forensic experts. Ultimately, he failed in that regard and the DNA evidence retrieved resulted in his arrest. Ms Luterek very properly conceded that the accused was liable to be convicted on this charge. The findings of the Court are accordingly as follows : COUNT 1 : KIDNAPPING: GUILTY . COUNT 2 : MURDER, READ WITH SECTION 51 OF THE CRIMINAL LAW AMENDMENT ACT 105 OF 1997 : GUILTY . COUNT 3 : DEFEATING OR OBSTRUCTING THE ADMINISTRATION OF JUSTICE: GUILTY . GAMBLE, J JUDGE OF THE HIGHT COURT sino noindex make_database footer start