S v Van Den Berg and Others (CC10/22) [2025] ZAGPJHC 1339 (2 December 2025)

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: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 1339 | Noteup | LawCite sino index ## S v Van Den Berg and Others (CC10/22) [2025] ZAGPJHC 1339 (2 December 2025) S v Van Den Berg and Others (CC10/22) [2025] ZAGPJHC 1339 (2 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1339.html sino date 2 December 2025 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, SITTING AT BENONI Case Number: CC10/22 (1)  REPORTABLE: YES (2)  OF INTEREST TO OTHER JUDGES: YES (3)  REVISED: NO 02 DECEMBER 2025 In the matter between: THE STATE and LEON VAN DEN BERG                                                      Accused 1 ABRAHAM HERCULES ENGELBRECT                           Accused 2 PIETER EGBERT STANDER                                             Accused 3 Summary The three accused were charged with the murder of a student activist during the apartheid era. The accused were members of the South African Police. The co-accused pleaded guilty to the offence resulting in a separation of trials. The prosecution relied upon the doctrine of common purpose alleging that Accused 1 and Mr Marais participated the common purpose to kill the deceased. An inquest was held in 1998, and a copy of the incomplete inquest record was handed in by agreement as an exhibit. None of the witnesses who testified, witnessed the actual shooting of the deceased. However, Mr Marais and Accused 3 testified during the inquest that they shot the deceased several times. Mr Marais’s statement in terms of s112 was handed up as an exhibit. In his statement Mr Marais admitted that he and Mr Stander fired shots at the deceased. It was common cause that the deceased died as a result of gunshot wounds which were inflicted on him. Upon conclusion of the State’s case, the cases in respect of all the accused were closed without any evidence being led on all their behalf. The court dealt extensively with issues pertaining to common purpose and the failure of the accused to testify in light of the prima facie case against them. Accused 1 was acquitted whilst accused 2 and 3 were convicted of murder on the grounds of common purpose. JUDGMENT “ The evil that men do lives after them. The good is often interned with their bones” William Shakespear – Julius Ceaser Ismail J: Historical background of the matter. [1] The three accused and another were originally indicted of murdering Mr Caiphus Nyoka a student leader who resided at Daveyton on the East Rand, during the dark hours, on the 24 August 1987. [2] This crime was committed during the notorious period when the South African government under the Nationalist Party ruled the country, the policy of the state at that time was founded on segregating the people of the country on racial lines, known as apartheid, the government adopted a policy which they styled as separate development. At the heart of this policy white people could vote exclusively whereas the rest of the population was deprived of the universal right to franchise. [3] In a landmark judgment of the Azanian People’s Organization (Azapo) v The President of the Republic of South Africa and Others 2004 (4) 726 CC, Mahomed DP, dealing with the constitutionality of Promotion of National Unity and Reconciliation Act 34 of 1995 at paragraph [1] stated the following: “ [1] For decades South African history has been dominated by a deep conflict between minority which reserved for self all control over the political instruments of the state and a majority casualty of this conflict as the resistance of those punished by their denial was met by laws designed to counter the effectiveness of such resistance. The conflict deepened with the increased sophistication of the economy, the rapid acceleration of knowledge and education and the ever increasing hostility of an international community steadily outraged by the inconsistency which had become manifest between its own articulated ideals after the Second World war and the official practices which have become institutionalised in South Africa through laws through laws enacted to give them sanction and teeth by a Parliament elected only by a privileged minority. The result was a debilitating war of internal political dissension and confrontation, massive expression of labour militancy, perennial student unrest, punishing international economic isolation, widespread dislocation in crucial areas of national endeavour, accelerated levels of armed conflict and dangerous combination of anxiety, frustration and anger among expending proportions of the populace. The legitimacy of law itself was deeply wounded as the country haemorrhaged dangerously in the face of this tragic conflict which had begun to traumatise the entire nation.’ [4] People were categorised into groups, and each group was designated separate areas to reside in by legislation known as the Group Areas Act. Mixing of different races was jealously guarded against by the ruling party. In the sports arena people of different races could not play for the same team. [5] The government of the day enforced the law with draconian power, and it utilised the police and security forces to enforce the laws harshly. In many instances opponents of their policy were arrested, and more often than not, without appearing in court. The rule of law as we know it today did not exist. Political organization such as the African National Congress, Pan African Congress and the Communist Party were banned. Most of its leaders were incarcerated [6] The United Nations declared apartheid a crime against humanity. It was premised on racial superiority and discriminated against people of colour and the majority of the inhabitants of the country. See: S v Mfalapitsa and Others [2025] ZAGPJHC 410 at para [37]. [7] Fast track to the 1980’s when organizations such as the trade union movements, community organizations such as the United Democratic Movement [UDM] and students in schools and universities started protesting against the government and its unjust laws. The government reacted by arresting its opponents and banning many individuals and organizations. Freedom of the press was curtailed, and some newspapers were even banned. [8] People who opposed the government’s policy were severely dealt with by the state, who used its forces to quell such opposition and in particular the police under the security branch were given unlimited powers to deal with any opposition to the apartheid State. [9] Caiphus Nyoka a student leader, from Daveyton, was a member of the Congress of the South African Students [COSAS], played a significant role in student affairs on the East Rand. He was targeted by the police, who according to his sister who testified in this court that her parental home was often raided by the security police during the dark hours of the night. [10] During one of these raids on the 24 August 1987, the Nyoka residence was raided by the police. During the raid Caiphus was fatally shot by members of the police force. [11] An inquest was held at the Benoni magistrates court in 1988. The presiding magistrate, Mr Myburgh, made no finding as to whether the deceased’s death was attributable to an act of commission or omission on the part of anybody. None of the policemen who raided the Nyoka premises on that day applied for amnesty at the Truth and Reconciliation Commission [TRC]. The trial [12] The trial commenced during November 2024, 37 years after the shooting of Caiphus Nyoka. The trial of the accused in this matter was separated from the trial of Eugene Marais, an erstwhile co-accused who pleaded guilty to the charge of murder. The accused in this matter were legally represented during the trial. Each accused pleaded not guilty and no plea explanation was given on behalf of any of them Evidence on behalf of the prosecution. [13] Two of the deceased sisters, Allegria Nyoka and Magdeline Nyoka, testified to the effect of how the police raided their parental home on that 24 August 1987. They could not identify any of the policemen who entered their brother’s room as their faces were covered to hide their identities. [14] Alegria testified that on the 23 August 1987, she and her family attended a funeral on their street of a neighbour Mrs Zitha.  She returned to her parental home together with her children and slept in a room which was built across the kitchen, [15] Whilst sleeping she was awakened by footsteps of people outside the yard as well as banging at Caiphus room door, there were many people there who were speaking to each other in Afrikaans, she opened her room door and she realised that it was a big raid, there were many policemen ambling around the premises. She saw one policeman with what she described as a “big gun with a chain on it”. She was ordered to close her room door failing which she would be shot. Three white policemen thereafter entered her room, and they started inspecting the room, [16] At 6 am her father came to her room. She accompanied her father to Caiphus’s room, The room was in a disarrayed state and there was blood spattered on the floor. Her father saw a hearse parked outside their home, thereafter she accompanied her father to Daveyton police station to enquire about Caiphus presence. [17] She and Mr Zitha went to the Apex government mortuary where she saw Caiphus body through a window. [18] She testified that Caiphus was attending school and that he was in grade 12.  He was the president of the student representative body at school. According to her he was a member of the Congress of South African Students (COSAS). Daveyton Youth Congress (Dayco) and Transvaal Youth Congress (Transco). She testified that he was a co-ordinator for the East Rand area. She described her brother as an altruistic person who loved people and wanted a united South Africa, [19] She was asked whether she saw any of the accused on the night when Caiphus was shot, she replied that she could not say that she saw any of the accused there. [20] She testified that during October 1987 an inquest was held however, she did not attend the inquest hearing. According to her the inquest finding was pending and that no finding was made of unnatural causes. [21] During February 1997 she attended the TRC hearing in Benoni, her family was unhappy with the inquest findings, and they felt that the inquest was a cover up of what happened, she stated that none of the accused applied for amnesty, she testified that her family persevered over the years to seek justice for Caiphus. [22] During cross examination she stated that they were officially informed of Caiphus death on the 26 August 1987. [23] According to her the investigation of this matter started during October 2019 when they were approached by the investigating officer in this matter. Magdeline Nyoka [24] She is the youngest sister of the deceased. On 23 August 1987 she attended the funeral of Mrs Zitha, according to her Caiphus also attended the funeral. Caiphus lived in one of the backrooms which was built alongside the main house. See photograph 4 of exhibit A1in another room which was added in the courtyard, her sister Alegria lived with her children. [25] During the early hours of 24 August she was woken up by a noise caused by people where were jumping over the property’s walls. She heard footsteps of people who were heading towards the back of the main house, thereafter she heard banging on the steel door, these people were endeavouring to kick down the door, she peeped through the window and saw many policemen on the property. She saw three young men lying outside Caiphus’s room dressed in their under wear, she went to her father’s room to wake him up. She noticed the policemen carrying a man with an afro hairstyle on a stretcher. [26] At 5 am she went to Caiphus room and saw that the steel door was damaged and the beds in the room were broken, there was blood spattered over the floor. Thereafter she went to her parent’s room, and she told her parents that the police killed Caiphus. [27] She testified that she was unable to recognize any of the policemen as their faces were covered. [28] She got to know accused 3, Mr Stander, as he testified at the inquest in Benoni. The other two accused were also present at the inquest. [29] Her evidence was interrupted as the prosecution intended to lead her evidence on the inquest proceedings, however the defence objected and they wanted to argue whether that evidence could be led. In order not to delay the matter any further. It was agreed by the parties that another witness’s evidence should be led subject to the parties’ preparing heads of argument regarding the admissibility of Miss Nyoka’s evidence relating to the inquest proceedings. Dr Nikki Rossouw [30] She has a PhD from Amsterdam University (cum laude). She worked for the National Prosecuting Authority and was seconded to the TRC during 1996. She did research work on the security forces of the country. She testified that the security branch was a highly secretive organization.… [31] She testified that the National Intelligence Services [ NIS] conceded that in 1993 they had destroyed 44 tons of documents. This was during the final days of the Apartheid regime. She testified that 296 people applied for amnesty at the TRC of which 228 of them were from the security branch, in my view she was clearly an expert witness on issues relating to the TRC commission. Incidentally she worked for almost two decades for the TRC. Dr Rossouw also testified that the armed forces and security forces used euphemism when they gave instructions to kill opponents such as eliminate, take out; take to the trees these expressions were used to kill opponents of the apartheid state. In this regard Mahomed DP at paragraph [17] of Azapa , supra, aptly stated: “ Much of what transpired in this shameful period is shrouded in secrecy and not easily capable of objective demonstration and proof…. Records are not easily accessible, witnesses are often unknown, dead, unavailable or unwilling...’ Gugulethu Nyakane [32] He is currently 58 years old. He met Caiphus Nyoka for the first time on the day of the funeral at the Zitha residence. He was then 27 years old; he was one of the three men who slept in Caiphus’s room on the night of 24 August 1987. They were about to sleep when he heard banging on the steel door followed by someone saying “ maak oop, polisie”. The door was forced open, and four men entered the room carrying flashlights they enquired who is Caiphus? Caiphus responded that he was. [33] The witness and the other two companions were forced out of the room and ordered to lie on the ground outside the room, whilst lying there he heard several gun shots. He is unable to say how many. Whilst lying there he noticed a man wearing a pair of jeans and a black top whose face was covered with a balaclava, [34] They were ordered to dress whereafter they were handcuffed and taken to a combi which was parked on the street. From there they were taken to the police station. [35] At the police station they were taken to a room where a policeman wearing jeans and a black top who had his mask rolled up to his head, wrote the following on the black board. 999 Lembe Street Executed Hands of death That policeman was armed, and he placed the gun to his head and ordered him to recite the words he wrote. He could see the face of the person. According to him it was accused 2. [36] He was taken to a police bakkie where there were two men in it and then transported to Benoni police station. At Benoni police station he was taken to an office where he was shown charts depicting firearm and bombs and he was questioned about such objects. From there he was taken to Daveyton police station. [37] At Daveyton police station he was placed into a locker which was closed. Whilst in the locker, pepper spray was released into the locker through the vents. The locker was pushed around until it fell. At the time of testifying I noticed that the witness was a well- built man almost the size of a burly rugby player. [38] He was taken out of the locker and handcuffed to a chair, a bag was placed over his head, and he was electrically shocked. He was asked questions about weapons, and he was interrogated by accused 2 and 3. [39] He testified that he attended the inquest hearing, He saw the three accused and another policeman at the hearing. [40] He testified that he saw accused 2 at work at the municipality where he worked, accused 2 told him that he liked his beard, [41] On behalf of accused 1 it was put to him that, accused 1 did not attend the inquest hearing. During cross-examination on behalf of accused 2, it was denied that accused 2 tortured the witness, It was also put to him that accused 2 did not work for the municipality however he worked for the EMPD as a security officer dealing with cable theft, It was put to the witness that accused 2 was a member of the security branch from 1984 to 1087, the witness was questioned about a statement he allegedly made, and it was put to him that he did not mention it in the statement that he could identify the police who tortured him, [42] Certain documents were handed in by consent, and they were marked as exhibits. These documents were: 42,1 Portion of the inquest record - 42.2 The post-mortem report - exhibit B 42,3 2 nd post-mortem report - exhibit C 42.4 Statement of Moses Nyoka - exhibit E 42.5 Inquest - exhibit F [43] The final state witness was Lieutenant Colonel Beukman, the investigating officer in this matter. He testified that he started investigating the death of Caiphus Nyoka in October 2020. He explained how he went about trying to obtain the inquest record, without success, eventually he contacted the family and that he received an envelope from Alegria Nyoka with newspaper clippings and other information she had regarding the TRC hearings which he followed up. He went to Daveyton police station to trace the docket however it could not be traced, he went to the scene at 999 Lembe street with a photographer and took photographs and he also had a sketch plan drawn.  He traced the three men who were with Caiphus on the night and took statements from them, he also went to Cape Town and spoke to a journalist, who covered the story, Mr Boonzaaier who gave him copies of his notes, He also met Dr Emslie who subsequently sent him his notes regarding an autopsy he performed on behalf of the family, He told the court how he managed to trace accused 1 and 2 during his investigations. He took warning statements from them. He could not trace accused 3, Mr Stander. as he was quite often out of the country. Accused 3 was eventually arrested at O R Tambo airport, He was represented by a lawyer, and he refused to make a statement. Upon the conclusion of Lieutenant Colonel Beukman’s evidence the state closed its case. Application for discharge [44] Pursuant to the prosecution closing its case, an application was lodged on behalf of accused 1 and 2 for the discharge of the accused in terms of the provision of s174 of the Criminal Procedure Act, the court was provided with heads of arguments by the parties in respect of this application. [45] I gave a ruling dismissing the application. However, no reasons for the ruling were given at the time. The court undertook to furnish reasons when it would deliver its judgment. I hereby give reasons for the ruling I made hereunder, [46] In short, the section states that at the end of the case for the prosecution the court may discharge an accused if there is no evidence against such a person at the end of the case for the prosecution. The words no evidence has been construed to mean no evidence upon a court acting reasonably, it may discharge the accused. The parties referred me to amongst other cases to the judgment of S v Lubaxa 2001 (2) SACR 703 SCA, a judgment of Nugent JA, at para [14] of the judgment the court stated: “ To place an accused on his defence in these circumstances has usually been said to conflict with the presumption of innocence which is a concomitant of the burden of proof -per Kentridge J in S v Zuma 1995 (2) SA 542 CC at para (33) or to infringe the accused’s right of silence and his freedom to refrain from testifying against…” Counsel for accused 1 also relied upon the judgment of S v Mojapelo 2014 JDR 0810 SCA at para [23] where Salduker JA found it astonishing that the trial court had not granted a discharge, where there was no credible prima facie evidence, at this stage permit me to say that the evidence against accused 1 and 2 stand on two different pillars. The evidence against accused 2 at this stage can briefly be summarized as follows: 1, He was the person who Mr Nyakane described as wearing jeans and a black top whose face was covered by wearing a balaclava, see- paras [32 and 34] supra. 2. He was the person who wrote those words on the black board see para [34] supra. 3. Mr Nyakane testified that he accused 2 together with accused 3 tortured him see para [38] supra j This evidence on its own is prima facie evidence that he has a case to answer, more particularly because the prosecution’s case is premised on common purpose. For those reasons the court refused a discharge against accused 2 as it was premised more on hope and optimism than on the evidence presented at this stage. The case of accused 1 is that he too was at the scene at 999 Lembe Street during the raid, He was a major in the security branch at the time, although he was not in the room when the deceased was shot, he was part and parcel of the team which raided the premises. Instructions were given prior to the raid regarding Caiphus Nyoka. It is not known what the instructions at the briefing was, whether the instructions were to perpetrate an execution or was it to effect an arrest, in this regard the allegation that accused 2 having written that it was an execution is uncontested at this stage. The case against all the accused is based on common purpose, at this stage the test is not beyond reasonable doubt, it needs not prove all the requirements which was set out in S v Mgedezi 1989 (1) SA 687 beyond reasonable doubt but on a lesser threshold of prima test. Common purpose has been broadly defined as a shared intent or design by two or more persons who engage in an unlawful criminal activity, thereby each person is liable for the other’s actions. Counsel for accused 1 in his heads of argument gave the definition of common purpose by the writers Burchell and Milton and Snyman at paragraph 38 of his heads of argument, those definitions by the writers should be construed to be incorporated into this judgment. Where there are multiple accused in a case and a discharge is sought was dealt with at paragraph 21 of Lubaxa as follows: Whether, or in what circumstances a trial court should discharge an accused who might be incriminated but a co-accused is not a question that can be answered in abstract. for the circumstances in which the question arises are varied, while might be cases in which it would be unfair not to do so. One can envisage circumstances in which to so would compromise the proper administration of justice, what is entailed by a fair trial must necessarily be determined by the circumstances, in the present case those circumstances do not exist… This sentiment was subsequently endorsed by Maya JA (as she then was) in the matter of S v Nkosi and another 2011 (2) SACR 482 SCA at para [25] Whilst it is true that accused 1 did not fire any shots at the deceased as he was not in the deceased room at the time of the shooting the following facts are uncontroverted: 1.     He was a major in the security branch at the time, 2.     He was part of the team which invaded the premises at 999 Lembe on the night that the deceased was killed, 3.     He could shed light on what the purpose of the raid was. Namely, whether it was intended to execute the deceased as was suggested or whether there was another reason, 4.     If the purpose was to arrest the deceased why he and the other policemen wore balaclavas to conceal their identities, 5.     Being a senior officer on that morning whether he sought any explanation from those in the room as to what transpired. Bearing in mind that the prosecution’s case is that the police acted with a common purpose to kill the deceased. I am of the view that would not be appropriate in the circumstances of this matter to grant a discharge as it would compromise the proper administration of justice. Accordingly accused 1’s application was refused. [47] Pursuant to the refusal of the discharge, Adv Gissing acting for accused 1, closed the case of accused 1. [48] The parties thereafter agreed to postpone the matter in view of accused 2’s absence. [49] When the matter resumed on 8 September 2025 both accused 2 and accused 3 closed their respective cases without leading any evidence. I should mention that Adv Van Wyngaardt handed in a document with the consent of the state which was endorsed as exhibit J. It was a statement of the erstwhile co-accused, Mr Marais, who pleaded guilty to a charge of murder before my brother Mosopa J. [50] This concluded the evidence which was presented in this court before me. The parties sought that the matter be postponed for them to prepare heads of arguments, which the court acceded. [51] The court was furnished with heads of arguments from all the parties. I thank them for their various contributions in this regard. Legal submissions made by the parties. [52] Each of legal representatives of the accused submitted that the accused should be acquitted for various reasons. The prosecution on the other hand submitted that all the three accused should be convicted of murder. [53] On behalf of accused 1 it was submitted that there was no evidence that he was in the room where Caiphus was shot. He did not testify at the inquest and to borrow a phrase from his counsel that there was no evidence whatsoever against him. On behalf of accused 2 it was submitted that the court should find that Mr Nyakane’s evidence should be rejected as he did not mention in his statement  that he could identify any person who entered the room, however at the trial he testified that it was accused 2 who wore the clothing he described and subsequently say his face. The raison d’etre of the argument on behalf of accused 3 was that he was not warned about his rights to self – incrimination at the inquest hearing and for that reason the inquest hearing should be declared inadmissible in respect of his evidence. Reliance for this view was premised on the decision of S v Lwane 1966 (2) SA 433 (A). I will revert to this aspect further on in this judgment. Evaluation of evidence [54] Out the outset permits me to mention certain trite legal principles which are worthy of repeating, and which the court is enjoined to follow. 54.1. In determining the innocence or guilt of the accused the court will                consider all the evidence presented, as determined by Nugent J (as he then was) in S v Van der Meyden 1991 (1) SACR 447 (W) at 449j- 450b. 54.2 The onus proves the accused guilt lies squarely upon the state. See: R v Difford 1937 AD 37 ; R v M 1946 AD 1023 S v Chabalala 2003 (1) SACR 134. 54.3. Evidence of a single witness will be viewed with caution- See, S v Sauls and others’ 54.4. “A conspectus of all the evidence is required…the compartmentalized and fragmented approach of the magistrate is wrong”- Trainor v S 2003 (1) SACR 35 SCA at para [9]. [55] In the course of this judgment I will allude the doctrine of common purpose which the prosecution relies upon, the right of an accused to remain silent, the admissibility of the inquest proceedings, albeit that the record of the inquest was incomplete; the question of Mr Marais’s s112 plea statement which was handed in as an exhibit (J). [56] The prosecution sought a conviction against all three accused based on the doctrine of common purpose. In its summary of substantial facts, it alluded to the accused and other officers having taken a decision to execute the deceased. This decision was taken at the police station at the briefing. The crux of the state’s case is that the purpose of the police attending the Nyoka household was to perpetrate an assassination and not to arrest Mr Nyoka. In furtherance of its case, it sketched the historical background of how the police and in particular the security forces of the apartheid state, consisting of the security police and defence operatives, operated. Mr Wyngaad in his address to me also alluded to the fact that one must consider the situation in the country at the time. To this end the evidence of Dr Rossouw was helpful and insightful. She testified how the security police and defence force operated with impunity in apprehending the so-called enemy of the state.  In some instances, they resorted to eliminating people who opposed the unjust system. She testified that an order to kill an opponent was not spoken off in literal terms or in plain language but was euphemistically used, words or phrases such as ‘take him out’, ‘eliminate’ or ‘send him to the cemetery’ were commonly used to kill opponents of the racist regime. [57] I will start of by analysing the evidence before me against the backdrop of what the common cause facts in this matter are: namely 57.1.  The deceased was fatally shot on 24 August 1987, by police who raided the Nyoka premises. 57.2. That Mr Nyoka died as a result of multiple gun-shot wounds on that day. 57.3. The three accused and Mr Marais were present at the Nyoka residence on that tragic morning together with other police. 57.4. Mr Marais accused 2 and accused 3 entered the deceased room after breaking the door to gain entry. 57.5.   according to the inquest record Mr Marais shot the deceased 4 times and accused 3, Mr Stander, shot the deceased 5 times. 57.5. Three other young men were in Mr Nyoka’s room prior to the police entering the room; one of whom was Mr Nyakane who testified. 57.6.  Marais, accused 2 and accused 3 testified at the inquest which was held at the Benoni magistrate’s court. 57.7. None of the police who participated during the raid on the 24 August 1987 applied for amnesty, at the TRC. 57.8.  no independent witnesses saw the shooting of Caiphus. The only account of the shooting, being that which was during the inquest hearing and what appears in Marais section 112 plea statement- exhibit F. The issue of the inquest record. [58] On behalf of accused 3 both Mr Oakes and Adv Wyngaard submitted that the inquest record should not be admitted against Mr Stander since he was not warned off his rights to self -incrimination. They submitted that in line with S v Lwane, supra, the inquest record should be ruled inadmissible against accused 3. I made a finding in this regard and provisionally gave my reasons at the time. Those reasons without repeating them should be construed to form part of this judgment. What I find quite perplexing is that Adv Wyngaard’s seems to blow both hot and cold regarding the inquest record. On the one hand, he wants to have the inquest record deemed inadmissible due to the failure in not informing Mr Stander of his rights to self -incrimination. On the other hand, he relies on the record in so far as Mr Stander relied on self-defence alternatively putative defence. Ogilvie Thompson JA in Lwane referring to R v Ramakok 1919 T.P.D. 305 at 308 where Curlewis J stated: “ Whenever a question is put to a witness which tends to incriminate him, I have always personally considered it my duty to warn the witness, especially an ignorant native witness … He continued at 440G by adding: “ The above-mentioned duty resting upon a judicial officer in no mere “technical rule” as suggested by Wigmore, but - as what was correctly noticed by Curlewis J, in the above cited passage- nor is it in my view, an absolute duty in the sense that its non-observance will always and inevitably render a witnesses’ incriminating statement inadmissible against him in subsequent proceedings”. Firstly, even if Mr Stander was not warned of his right to self-incrimination, what he said at the inquest was not self- incriminating. On the contrary it was an exculpatory defence which he proffered. Secondly, even if that evidence appears to be prima facie unlawful, we must pay credence to what Kriegler J. stated in Keys v Attorney General, Cape Provincial Division and Another [1996] ZACC 25 ; 1996 (2) SACR 113 (CC) see paras [13] and [14] of judgment. ‘’ [13] …. …….to be sure a prominent feature of the tension is the universal and unceasing endeavour by international human rights bodies, Enlightened legislatures and courts to prevent or curtail excessive zeal by state agencies in the prevention, investigation or prosecution of crime”. But none of that means sympathy for the crime and its perpetrators. Nor does it mean a predilection for technical niceties and ingenious legal stratagems what the Constitution demands is that the accused be given a fair trial. Ultimately, as was held in Ferreira v Levin, fairness is an issue which has to be decided upon the facts of each case, and the trial judge is the person best placed to take that decision. “( my underlining) [59] I am of the considered view that notwithstanding the inquest record being incomplete and the issue raised by accused 3’s legal representatives, what he testified to at the inquest hearing was exculpatory, for that reason the interest of justice therefore demands its acceptability as evidence in this trial. [60] I am alive to the erudite remarks of Cameron JA in the matter of S v Tandwa and others 2008 (1) SACR 613 SCA dealing with a fair trial at paragraphs [117] et seq in that matter. The court at paragraph 118 stated: “ There may be cases when the trial will not be rendered unfair, but admitting the impugned evidence will nevertheless damage the administration of justice. Central in this inquiry is the public interest…” [61] This begs the question whether his utterances at the inquest regarding how he acted in self-defence automatically implies its acceptance as evidence before me. Bearing in mind that he did not testify in this matter where he is charged. At best the court can accept that he said what he said at the inquest, however it was not repeated under oath before me and there was no evidence presented in this trial that he acted in self-defence. Furthermore, the magistrate who presided at the inquest did not make a finding in terms of section 16 (2) of the Inquest Act. [62] It was also submitted on behalf of accused 3 who associated with the submissions made by Adv Gissing on behalf of accused 1 that the prosecution’s case on common purpose changed from what was stated in the summary of substantial facts compared to their acceptance of a plea of guilty by Mr Marais where they accepted his statement that the common purpose was entered into at the Nyoka premises whereas the summary of substantial facts clearly alluded to it taking place at the police station during the briefing. [63] Both counsel for accused 1 and 3, submitted that the state’s case in this regard changed. Whilst that may be true the all-important question is whether the deviation is so material as to render the state’s case impotent and non-existent. The deviation in my view seems to suggest that there were fewer people involved in the common purpose then the state initially anticipated. In other words, the net of perpetrators involved in the common purpose was scaled down according to Marais statement. [64] Adv Gissing submitted that Marais did not include accused 1 in the common purpose to kill the deceased. Marais stated in his guilty plea that accused 2 merely gave the instruction to himself and Stander. Accused 1 was not present when the instruction was given and at stage accused 1 was not present. [65] In a nutshell it was submitted that there was no evidence linking accused 1 to the shooting of the deceased and that the test at the end of the trial was that the prosecution had to prove its case against accused 1 beyond reasonable doubt which is a higher standard than when a discharge was sought at the end of the prosecution’s case. Failure to testify [66] Before I analyse the arguments on common purpose submitted to the court, I would deal with an accused right to remain silent during a trial and not to give evidence. [67] Section 35 (3) ((h) of the constitution, prescribes the right to remain silent, however this right may have consequences for an accused person if he/she elects to remain silent in the face of a prima facie case which the prosecution has presented, and such a person does not gainsay such evidence. [68] None of the three accused in this matter as previously stated gave evidence. The court would have to determine whether the state made out a prima facie case which needed some response from the accused. Having said that it should not be understood that the court places an onus on the accused to testify. [69] The Constitutional Court in the matter of Osman v Attorney General Transvaal 1998 (2) SACR 93 CC, where Madala stated: “ Our legal system is an adversarial one. Once the prosecution produced evidence sufficient to establish a prima facie case, an accused who fails to produce evidence to rebut that case is at risk. The failure to testify does not relieve the prosecution of its duty to prove the guilt beyond reasonable doubt. An accused, however, always runs the risk that, absent any rebuttal, the prosecution’s case may be sufficient to prove the elements of the offence. The fact that an accused has to make such an election is not a breach of the right to silence. If the right to silence were to be so interpreted, it would destroy the fundamental nature of our adversarial system of criminal justice.” See also: S v Boesak 2001 (1) SACR CC and S v Tandwa and others 2008 (1) SACR 613 SCA and S v Molebatsi [2024] ZAGPPHC 302 at para [18]. Common purpose [70] The doctrine of common purpose is a doctrine where individual perpetrators are held criminally responsible for a crime they did not physically perpetrate if they had a prior agreement or actively associated with others to achieve it. (See page 20, supra where common purpose was referred to) [71] This doctrine has received attention in the matter of S v Thebus [2003] ZACC 12 ; 2003 (2) SACR 319 where Moseneke J found that it passed constitutional muster. [72] For the doctrine to apply it was stated in S v Mgedezi and others 1989 (1) SA 687 (A) that the following pre-requisites must be met, at 705J-706b, namely. “ … . In the first place he must have been present at the scene where the violence was committed. Secondly, he must have been aware of the assault if the inmates of room 12. Thirdly, he must have intended to make common cause with those who were actually perpetrators of the assault. Fourthly, he must have manifested his sharing of the common purpose with the perpetrators of the assault by himself by himself performing some act of association with the conduct of the others. Fifthly, he must have had the requisite mens rea; so, in respect of the killing of the deceased…” [73] The doctrine of common purpose was dealt with in the judgment of Machi v S [2021] ZASCA 106 at paragraphs [34] to [40] the Supreme Court of Appeal dealt with the issue of the doctrine as it applied to that matter. At para [36] the court stated: “ [36] In Devnath v S Mocumie AJA, explained the application of the common purpose doctrine as follows: “In the light of the facts of this case, it is important to note that the doctrine as espoused in S v Mgedezi [and] others has been pronounced by the Constitutional court to be constitutional.  The most requirement of active association is to curb to wide a liability. Current jurisprudence, premised on a proper application of S v Mgedezi [and] other, makes it clear that (i) there must be a close proximity in fact between the conduct considered to be active association and the result; and (ii) such active association must be significant and not a limited participation removed from the actual execution of the crime” [74] The prosecution in its summary of substantial facts alluded to the common purpose to kill Mr Nyoka being discussed at the briefing, at the police station. This would mean that all the police who were present at the briefing ought to have known that Mr Nyoka was to be killed as opposed to him being arrested. This would have involved all the police from the security branch, riot squad and municipal police who were at the briefing. However, the state accepted the plea of Marais as alluded to earlier herein where he stated that It was Engelbrecht, accused 2, who gave the instruction immediately prior to getting into the room where the deceased was shot. On the plea which Marais made, which the state accepted, accused 1, Mr van der Berg was not present when the instruction was given and the requirements that he knew that Mr Nyoka was to be executed was not established, nor is there any evidence that he associated himself with the actions of the others. It was submitted that the court should infer that it was discussed at the briefing that the deceased was to be killed, because the operation was planned and the area was surrounded by police. Furthermore, the court should ask itself why they wore garments to cover their identities. All this suggests that the plan was not to arrest the deceased but rather to kill him. [75] During the submissions made before me regarding accused1’s role in the operation it is clear that he was at the scene at Lembe street. Notwithstanding his presence at the scene the prosecution still bears the onus to show that he associated himself with the actions of the others and that he was aware that Caiphus was to be killed. In this regard I cannot make inferences of his knowledge regarding the other requirement referred to above. There is no evidence that accused 1 associated himself with the actions of Marais, Engelbrecht and Stander. See S v Majozi 1991 (2) SACR 632 [76] Accused 1 did not testify. It is trite that no onus rests upon an accused to prove his innocence. The onus as, referred to above in para [51.3], rest on the state to prove its case. This begs an answer to the question whether there was a case for accused 1 to answer as suggested by Madala J in the matter of Osman supra. This issue was dealt with earlier in this judgment at paragraphs [63] – [65] supra. The case against accused 2. [77] Mr Moila submitted that accused 2 should be acquitted of the offence. The evidence against him is premised primarily on the evidence of Mr Nyakane and the s112 plea of Marais. He contended that Mr Nyakane’s pointing out of accused 2 as the person who tortured him should not be accepted as it was a dock identification. Mr Nyakane did not mention in his statements that he could identify any suspects. He suggested that the witness was wrong when he stated that Engelbrecht is the person who wrote the words on the board as suggested in paragraph [33] supra. Mr Nyakane spent a considerable period of time with accused 2 in a room which was lit. He was tortured by accused 2, according to him, and the latter also took him to his home.  They travelled in the car to his home, and he was also transported to the police station by accused 2. In my view Mr Nyakane was with accused 2 for a considerable period and not for a fleeting moment or short period of time. They were in close proximity to each other and the room was sufficiently lit for him to see the person who he said was accused 2. [78] The issue of dock identification was dealt with in S v Matwa 2002 (2) SACR 350 by Leech J. It is trite that the issue of identification must always be viewed with caution, See the remarks at 356f-g where the judge stated: “ No fixed rules can be laid down. In each and every case the judicial officer must decide upon what weight, if any, is to be afforded to dock identification, regard being had to all the material circumstances- including those prevailing when the initial observation took place as well as those under which the identification in court is made…” [79] One must bear in mind that accused 2 did not testify. Although it was put to the witness Nyakane that he was mistaken, which the witness denied. Accused 2 did not gainsay the occurrence which took place in the office.  Mr Nyakane’s evidence does not assist the court directly with who was in the room when the deceased was shot. His evidence deals with what happened at the police station in the room, and his assault/torture by a policeman who transported him to his home, who he identified as being accused 2. Of importance is what this person wrote on the board in the room, which has a bearing regarding the shooting at Lembe street. [80] I am of the firm view that there is no plausible reason for him to have manufactured a narrative of what occurred in the room at the police station. On the evidence presented he had enough time and opportunity to observe the identity of the person he was with in the room. I my view the overwhelming probabilities support the proposition that he is not making a mistake regarding the identity of accused 2, or that accused 2 wrote on the board as he testified. [81] On this score Mr Nyakane’s evidence is strengthened by what Mr Marais stated in his s112 statement that it was accused 2 who gave the instruction to take out the deceased. If those words are construed to kill someone then it was an execution as was suggested by what was written on the board in the office by accused 2. [82] As an aside, A lot has been made out about the case of S v Daniel Ntsoseng. Mr. Ntsoseng was charged and he alleged that he received the explosives from the deceased. He told the police who arrested him that he obtained the bag containing weapons and explosives from the deceased. The evidence presented in that trial was to determine the innocence of guilt of the accused, Mr Ntsoneng, in that matter. The finding of the court in that matter does not assist this court in determining whether Mr Nyoka was murdered or not by the members of the SAPS who raided his home. It merely explains why the police raided the premises as opposed to what their true purpose was. [ 83] In this regard those who attended the deceased’s room were best placed to explain what their intentions were and/or to explain what happened there. However, they elected to remain silent in terms of s35 (3)(h) of the bill of rights – which was their choice to do so. The case against accused 3 [84] Accused 3’s counsel submitted that the inquest record should not be admissible as referred to earlier. This aspect or argument was dealt with, earlier in this judgment, - see para [55] The evidence against him is the inquest record which reflects that he testified and suggested that he acted in self-defence. There is also the s112 statement of Mr Marais which indicated that he shot the deceased several times. It is now submitted that if the court finds that he did not act in self-defence then he acted in putative self-defence. The suggestion that he acted in putative self-defence manifested itself in the heads of arguments which were presented to the court. This firstly was not raised at the inquest, and it reared its heads simply as a consequence of Mr Marais’s s112 statement where in he stated that when he shot the deceased the latter was not armed, nor did he pose a threat to them. [85] Accused 3 did not testify and consequently there is no evidence from his side explaining why he fired several shots at the deceased. In the absence of any explanation from him how is the court to determine whether he acted reasonably in shooting the deceased and as such acted in fear of his life. Is the court to simply infer that he acted reasonably?  He in my view had to testify and raise his version, if he acted in self -defence, for the court to make a finding that a reasonable man in the circumstances that accused 3 found himself in would have acted as he did. In this see: S v Patel 1959 (3) SA 121 (A) and S v Motleleni 1976 (1) SA 403 (A). [86] Mr Wyngaard also submitted that the prosecution failed to prove that the shots which accused 3 fired caused the deceased’s death. Without wanting to be critical to this submission I will simply state that it is a desperate and ingenious submission because the prosecution is premised on belief that the accused acted in common purpose and the accused set out on a political assassination. [87] Accused 3’s reliance of putative self-defence again is a feckless argument as he failed to take the court into his confidence by telling the court what was going on in his mind at the time when he fired those shots at the deceased. Case against accused 1 [88] Accused 1’s counsel submitted that there was no evidence against his client, and that the test at the end of the case was that the prosecution had to prove its case beyond reasonable doubt as opposed to the stage when a discharge was sought. In this regard the evidence was clear that he was not in the room when the deceased was shot. His counsel submitted that in terms of Marais’s s112 statement at paragraphs 6.16, 6.17 and 6.18 appears. The deceased did not pose a threat when Stander and I fired the fatal shots. The deceased was shot with the intention to kill him. 6.17 Moments after Stander and I shot the deceased, Engelbrecht re-entered the room to inspect the deceased’s body. 6.18 Van den Bergh and Killian followed Engelbrecht into the room. Killian approached the body and confirmed that the deceased was dead. 6.19….” [89] Counsel for accused 1 submitted that accused 1 was at the front of the house at the time the three policemen were at the door of Caiphus and there is no evidence that he heard the instruction Engelbrecht gave to Marais and Stander. [90] It was submitted that Accused 1 did not testify at the inquest. In short there is no evidence which ties him to the shooting of the deceased, or that he was aware that the deceased was going to be shot. For that reason, the requirements set out in Mgedezi do not apply to him. By the same token there is no evidence that he associated with the conduct of the others as he was not aware of the intent by them to kill the deceased. [91] In the circumstances of the totality of the evidence presented I make the following order: 91.1 The prosecution failed to establish or prove beyond reasonable doubt that accused 1 associated with the actions of Marais, accused 2 and accused 3 to kill the deceased. To this end it also failed to prove that accused 1 acted in common purpose with others to kill the deceased. Accordingly, accused 1, Mr Van den Bergh is found not guilty of the charge of murder. 91.2. The evidence presented in my view clearly established that there was a common purpose between Mr Marais, Mr Engelbrecht and Mr Stander to kill Mr Nyoka on the 24 August 1987. 91.3 On the accepted evidence, the court finds that the assailants entered Mr Nyoka’s room not to effect an arrest but to assassinate him. When the deceased was shot, he posed no threat to any of the policemen, who entered his room 91.4 Accused 2 on the……  is found guilty of the crime of murder. The court finds that even though he did not shoot my Nyoka, he gave the instruction that Mr Nyoka should be killed. 91.5 Accused 3, Mr Stander is convicted of murder. The court finds that he was one of the shooters who fired shots at the deceased which caused the deceased death. MHE Ismail (J) Judge of the High Court Gauteng 2 December 2025 APPEARANCES: For Accused1:                Advocate Gissing Instructed by Gerhard Nel & Snyman Inc. For Accused 2:               Mr Moila Instructed by State Attorney For Accused 3:               Adv Wyngaard and Mr Okes Instructed by Kruger & Okes Attorneys For the State:                 Adv Kabini, Adv Devana and Adv Mogotsi. Office of Director of Public Prosecutions, Pretoria Date of Trial:                   20 November 2024. Judgment:                      02 December 2025. sino noindex make_database footer start