HIGH COURT (BISHO) JUDGMENT. 1. The accused is charged with 1 count of robbery, 2 counts of malicious injury

Transcription

1 HIGH COURT (BISHO) CASE No. CC59/2000 THE STATE versus MOSES MABY MRABULI Accused JUDGMENT EBRAHIM J: 1. The accused is charged with 1 count of robbery, 2 counts of malicious injury to property, 2 counts of murder and 1 count of robbery with aggravating circumstances. 2. He has pleaded not guilty to the charges and in terms of s 115(1) of the Criminal Procedure Act 51 of 1977 ('CPA') elected not to disclose the basis of his defence to any of the charges. 3. In substantiation of these charges Mr Els, who appears for the state, tendered the evidence of a number of witnesses. What follows is a summary of the relevant facts from the evidence of each witness.

2 Ms Ester Lufuso testified that she carried on the business of a shebeen at 9044 NU 3 Mdantsane. At about 5:00 p.m on 20 November 1998 the accused arrived and assaulted the patrons with a golf stick. At the same time he told him them that they should be at Moyi's place as there should only be one shebeen. She begged him to leave the patrons alone whereupon the accused said that she had to beg by giving him something as he was a councillor. She replied that she did not have any money but he insisted that she give him R10.00 and she then complied. The accused then left and took with him some of the eggs which she was selling. Later the accused returned and told a person named Toni Tokwe to be present as he was going to take her money. He then took the money which she kept in a cloth bag around her waist and left. The following morning the accused returned, accompanied by Toni Tokwe, and apologised to her for what he had done. He said that he had been drunk but would ask his father for money so that he could repay her. However, on leaving he hit out at two buckets which broke. The cost of each bucket was R5,00 and R10,00 respectively and the amount of money that he had taken from her was over R200,00. During cross-examination by Ms Ntobe, who appears for the accused, the witness said that the accused was a bogus councillor and not a member of any committee. It was put to the witness that the accused admitted that he had said there should be one shebeen but denied that he had assaulted anyone. The witness said that one of the patrons named Toto had been injured. She had told

3 -3- the police that the accused had used a golf stick with which to assault the patrons. By asking her to beg the accused meant that he wanted her to give money to him. She insisted that the accused had taken more that R170,00 from her and could not explain why the police had recorded that it was R170,00. The accused had broken the buckets before she gave him R10,00. She had made a mistake in saying that he had broken the buckets the following day. She insisted that Toni Tokwe had witnessed the accused taking the money from her. 7. Toni Sandile Tokwe testified that on 20 November 1998 he saw the accused use a golf stick to strike a man standing at the gate at Ester Lufuso's house. While doing so the accused had said that there should only be one shebeen. Inside the house the accused used a grass cutter to assault the patrons and told them to leave, which they did. The accused told Ms Lufuso that she had to bribe him as a member of the committee and also that he was thirsty. Ms Lufuso gave him R10,00 and said she did not have any liquor. The accused took the R10,00 and 6 raw eggs and left. In his opinion Ms Lufuso did not give the accused the R10,00 voluntarily. 8. Later the accused returned and again told people to leave and repeated that there should only be one shebeen. He also assaulted the individuals by kicking them and had forced them to run away. Ms Lufuso had objected and said to the accused that she had given him R10,00 to buy liquor. But, the accused pushed her into the house and placed his hand in the cloth bag she had around her waist and took out the money. The witness had told the accused that what he was

4 -4- doing was wrong. These events occurred over the weekend and on Monday the accused approached him and asked him to accompany him to the house of Ms Lufuso as he wanted to ask for forgiveness. The accused told Ms Lufuso that he had heard that he had done wrong and added that he would ask his father for money and repay her for the money he had taken. 9. Ms Ntobe asked the witness why there was no mention in his statement to the police (Exhibit 'B') of the accused taking money from the bag Ms Lufuso had around her waist. He replied that he had told the policeman who said that Ms Lufuso had already mentioned this. He had also told the policeman that the accused had used a golf stick and grass cutter with which to assault the patrons. He admitted that the accused's older brother, Sakumza Mrabuli, had testified against him in respect of a charge of assault but he had been acquitted. Despite this he and the accused had a good relationship. He insisted that the accused had taken the money forcibly from Ms Lufuso. 10. In reply to the court's questions he said that he and the policeman, who had taken the statement, had conversed in Xhosa. It was not correct, as recorded in the statement, that he had spoken English. Further, the police had not read the statement back to him and he had merely been told to sign it. He had hardly any formal education and had left school during Standard 1. He denied that he was implicating the accused falsely. 11. The testimony of Makaya Eric Marwanqa, who is an inspector in the SA Police

5 -5- Services, is that he went to the house of Mr and Mrs Maqhina, the deceased cited in Counts 4 and 5 respectively. There he was met by a crowd of people. He was shown two bodies, one on the left hand side of the road and the other on the opposite side. They were the bodies of the deceased. The deceased, Douglas Zinakile Maqhina, had open wounds to the back of his head and there was blood on the ground and his clothing. He was dressed in a shirt and a grey suit. The other deceased, Tutu Emily Maqhina, had open wounds on the forehead and her skull was cracked. There was blood on her clothes around her neck and the front of her chest. He could not see if there was blood on the grass as it was burnt. The bodies were lying 80 to 100 metres from their house. 12. At about 1:00pm he received a telephone call and proceeded to the house of the accused. On arrival he found the accused's girlfriend, Nokwanda Simka, there but not the accused. She told him that the accused was at the Highway bus terminus. He asked if he could search the house and she consented to this. Accompanying him was Andile Matoti and 2 others. In the bedroom under the bed he found various articles - 2 axes (one with blood on it), an electric meter box, a 2,5 kg packet partly filled with samp, a yellow container with a white lid, and a dish with a coloured pattern and a lid with mealie meal inside, a paraffin heater, a portable radio, a navy blue blanket with white pattern and stripes and a spade. Nokwanda Simka said that the accused had brought these items home during the night. These items were later identified by Nomvuyiso Makhubalo (a neighbour of the deceased) as the property of the deceased.

6 He then went to look for the accused and found him in Duncan Village and arrested him. He informed the accused of his right to remain silent and that he was not obliged to make a statement but, if he did, it could be used as evidence. He also informed the accused that he had a right to legal representation and that if he could not afford one a legal representative could be appointed by the state. These rights the accused understood. The accused was then taken to the police station and handed over to Inspector Molosi who was investigating the charges of murder. 14. It emerged during cross-examination that three other policemen were with when the accused was arrested. Present also were members of the community. One of them was Andile Matoti who had provided information regarding the suspect and the location of certain items. It was as a result of this information that he had gone to the house of the accused. He searched the premises and found the axe, which had blood on it, another axe and other articles. Ms Nokwanda Simka and other individuals were present when these articles were found. Nokwanda had said that the axe with blood on it belonged to the accused. On his arrest the accused had said that he felt sorry for what he had done and did not know how it had happened. The accused was not injured and had not been taken to the Cecilia Makiwane Hospital. Although the police were armed they had not pointed their firearms at the accused. In reply to a question from the Court, Inspector Marwanqa said that the accused had not been assaulted when he was arrested nor subsequently.

7 The next witness was Nontsikelelo Lufuso who is the daughter of the witness Ester Lufuso. She related that on the day in question when the accused arrived at her mother's house he was carrying a golf stick and had said, 'Did I not say there must be one shebeen'. He then struck two buckets which broke. The accused entered the house and repeated that there should only be one shebeen. He hit the patrons, using the golf stick, and they fled. When she asked him what he was doing he punched her on her mouth and chest. She ran to phone the police and upon her return found her mother crying. The accused had taken the money which she kept a cloth bag around her waist. 16. During cross-examination she said that the accused had apologised to her mother for what he had done but she had told her not to forgive him. She had not seen the golf stick break and last saw it in the possession of the accused. 17. Thozama Tom testified that on 18 December 1998 she was at home at 9054 NU3 Mdantsane. Bonisile Ngcuka was also there. At about 8:00 pm the accused arrived and told her that the committee was evicting her and that he was going to do this. She did not know which committee he was talking about and did not reply. The accused grabbed hold of a cupboard and pulled it over and did the same with a second and third cupboard causing her to flee. Food that was stored in the cupboard had spilled on the floor and the hinges of the cupboard doors were damaged. The value of the damaged items amounted to R203,49.

8 During cross-examination it was put to her that the accused had leaned on a cupboard and it then fell over. She denied this and insisted that the accused had deliberately pulled the cupboards over. In his testimony Bonisile Ngcuka confirmed that he was present at the house of Vis Tom on 18 December 1998 when the accused arrived. The accused was angry and had told her to leave the house as the committee had said that she must vacate. Before she could reply the accused said that she was cheeky and pulled down the cupboards in the kitchen. The cupboards had not fallen down by accident. The following day Ms Tom had shown him that various items had been broken such as the glass of a paraffin lamp and the hinges on the cupboards. When cross-examined the witness Ngcuka disputed that the accused had leaned on the cupboards and that they then fell over accidentally. He maintained that the accused had grabbed hold of the top of the cupboards and pulled them over one by one. The next witness, Nomvuyiso Makhubalo, was a neighbour of the two deceased persons. On 11 July 1999 while walking along the road she saw an old man lying on his back next to the road. She called to him but he did not respond and saw that it was the deceased, Douglas Maqhina. She went to his home to look for his wife and on arriving there found the front door and bedroom door open. She shouted but there was no reply. She was shocked and went to the house

9 -9- of Nomtata Sululu and told her what she had discovered. Both of them proceeded to where the old man was lying and established that he was dead, f-'rom there they went to the police. 22. On their return to the scene the body of the other deceased, Nosahina Maqhina, was discovered on the other side of the road. She identified both deceased to the police. She was also shown certain articles on the back of a bakkie and identified these as the property of the deceased persons. These items were amongst those which appeared on photograph no. 10 of Exhibit 'C. Thereafter she accompanied the police to Duncan Village where the accused was arrested and taken to the police station at NU12. At the police station the accused told the police that there were other articles in a ravine. The police left with the accused and returned later with a striped bag containing a wall clock, an executive case and other items. She cannot recall if there was an electric meter box but had seen one, which was still to be fitted, at the home of the deceased. There was no antagonism between the accused and herself. 23. Under cross-examination Ms Makhubalo confirmed that she had made a written statement to the police. She was not able to recall if she had stated therein that she had seen a dish with samp in it on the back of the van. At the police station she had heard the accused tell the police that he had hidden a plastic bag in a ravine. He had said that he had committed the killings and had left some of the articles in the ravine. She had not seen the accused being assaulted with a stick. She could not remember if the accused's pants had been taken off. She

10 -10- could also not recall the date on which the accused had constructed a fence for the deceased. She denied that she had ever been the accused's girlfriend. She had not heard the accused saying that he had taken the articles from the shack of Lolosi. She could not remember if Lolosi had accompanied the police and the accused to the ravine but thought Andile Matoti had done so. 24. Nokwanda Thelma Simka testified that she had been the accused's girlfriend and had stayed with him at 9027 NU4 Mdantsane. During the night of the 10 th to 11 th July 1999 she was awoken from her sleep when the accused arrived home. The accused was carrying the heater which appears on photograph 10 of Exhibit 'C. She asked him where he had obtained it and he said that it had been abandoned by some boys whom he had chased. He also told her not to question him. He was dressed in a check-patterned trousers, a skipper and a jersey which was beige in colour with brown stripes and had buttons on. 25. The accused left and returned some time later and brought in an electric meter box, a primus stove, a radio, a dish containing samp and a packet with mealie meal in it. These items, she confirmed, appeared in photograph 10 of Exhibit 'C. On his return the accused was no longer wearing the same trousers and jersey. He still had the skipper on but now wore a tight red pants. 26. The accused again left taking his lumber jacket with him and returned later. Before going to bed he switched on the radio for a short while and she established from the radio programme called '12 Down' that it was 4:00 am.

11 -11- Later that morning when she awoke she went to the toilet and found the accused's trousers in a basin with a mixture of water and blood. Lolosi Matroshe arrived and she showed this to him. She asked the accused to remove his trousers as she wanted to use the basin. Thereafter she took her baby who was 13 days old to hospital. 27. Upon her return from the hospital the police arrived with Lolosi Matroshe and other residents. Lolosi and the police went to the bedroom and lifted the bed up and took out a blanket in which a number of articles were wrapped, amongst them two axes. These items appear in photograph 10 of Exhibit 'C, The police asked her to accompany them to the Highway taxi rank as the accused had told her he was going there. The accused was not there and she directed the police to a place in Duncan Village where the accused was arrested. They all proceeded to the police station and she and the residents were taken inside. The accused remained outside with the police and went off with them. Later they returned with a plastic bag containing a number of items, which appear on photograph 10 of Exhibit 'C, and with the other items recovered at the house. She also saw the accused's jersey, which was wet with blood, being carried by a policeman. The accused was handcuffed. 28. When asked about the accused's relationship with the two deceased persons she said that whenever the accused needed something he went to them. At some stage he had also erected a fence for them. Lolosi Matroshe had been staying in the accused's house while erecting his own shack. On the night of 10 th

12 -12- to 11 th July 1999, Lolosi had slept in his own shack as he had finished construction of the roof. 29. During cross-examination she confirmed that Lolosi had kept his goods in the house while he was erecting his shack. Lolosi fetched his things later that day while the accused was absent. The accused had accompanied her to hospital and had worn the trousers he had washed despite it still being very wet. Lolosi was not in the house when they returned. She had not seen the accused being assaulted at the police station and was present when his trousers were taken off. On the night of the events she and the accused had slept in the dining-room of the house, which is a two-roomed house. She maintained that the jersey belonged to the accused. 30. In reply to questions from the Court she said that she had swept the diningroom but not the bedroom the previous day. She had not seen Lolosi carrying any goods into the house. Her relationship with the accused had ended on the day of his arrest but she did not have any animosity towards him. 31. The state then tendered in evidence, with the consent of the defence, two reports (Exhibits 'G' and 'H') in respect of the medico-legal post-mortem examinations carried out on each of the deceased. Ms Ntobe confirmed that the defence accepted the findings in both reports. 32. Thereafter Mkhuseli Eric Potwana, an inspector in the SA Police Services,

13 -13- :estified that his duties were that of photographer and draughtsman. On 11 July 1999 he was called to a gravel street in NU 3 Mdantsane where he took photographs 1 to 9 forming part of Exhibit 'C On 15 July 1999 he took photographs 10 and 11 at the Mdantsane police station. He also prepared the key to the photographs. He was not cross-examined. The next witness, Khangela Simon Mzamo, stated that on 12 July 1999 he and his mother were fetched at their home by two policemen. The accused and another person were with the police and they were taken to the police station. There the accused had apologised for killing the deceased who were the grandparents of the witness. The accused had also related that he had been to a shebeen and on returning home had found his baby crying as it was hungry. He then left home to try to get money for food and found himself in the yard of the residence of the deceased. He had knocked at their door and when they opened had told them that their daughter, Nontsikelelo, had arrived from Cape Town and had been attacked near Hlazea school. Both the deceased accompanied him and on the way to the school the accused had attacked the grandfather with an axe. The grandmother tried to intervene and he attacked her with the axe too. Thereafter the accused returned to the home of the deceased and took what he wanted. The accused also said that he did not know what went on in his mind and that he was not even similar to the devil. And, when Ms Mzamo, the mother of the witness asked him how he had done it he described it step by step. However, the accused had shown remorse.

14 Cross-examination revealed that at the police station Ms Mzamo had asked the accused who he was. The accused had apologised and said that he had not indended what had happened. This conversation took place in the presence of two policemen. When it was put to the witness that the accused denied having apologised the witness replied that the accused was being untruthful. 35. In reply to questions from the Court the witness said that the accused had said that he had hacked both the deceased with an axe. One of the policemen who had heard the accused relating what he had done was named Marwanqa. The accused had not been threatened or assaulted by anyone. 36. "Momademvu Vivien Mzamo is the daughter of the two deceased and the mother of the witness Khangela Simon Mzamo. Since her description of the events of 12 July 1999 was very similar to the version furnished by her son in his testimony I do not intend repeating same. In addition to testifying in regard to those events she also testified that she had identified all the articles recovered by the police, apart from the two axes, as being the property of her deceased parents. 37. Only a few issues of significance arose from cross-examination. It was only at the police station that she enquired why she had been brought there. She was then told that the accused had asked for her and this the accused himself confirmed to her. He was unhappy with what he had done and wanted to apologise beforehand if he was sentenced. The accused was not telling the truth if he said he had not apologised.

15 The next witness, Andile Matoti, testified that on 11 July 1999, after receiving a report, he and Mzimkhulu Mahotsi went to the home of the deceased. From there, while proceeding along the street, they came across the body of the grandfather. He also heard that the body of the grandmother was on the other side of the street but did not go there. He proceeded to the accused's home to tell him of their deaths. The accused responded by saying that it would have been better if Nompahla or Toni had died. The witness then returned to the house where he had been drinking. A young boy, Lolosi Matroshe, arrived and said he was being chased by the accused who had an axe with blood on it. The witness with Mzimkhulu Mahotsi, Zolise Petcha and Lolosi Matroshe proceeded to the house of the accused and asked Nokwanda Simka where they could find the accused. After looking for the accused in the vicinity of the hospital and at the Mdantsane Hall they went to Duncan Village where they found him. The police arrested the accused and took him to the NU 12 police station. After being shown the goods found at his house, the accused told the police that he had hidden other articles in the forest near to his home. The police left with the accused and later returned with a number of other items. 39. The following day the witness accompanied the police to the home of the deceased's daughter as the accused had said that he wanted to apologise to the family. They fetched the daughter and her son and took them to the police station. There the accused said he was apologising for something he had done. He also said that he had chopped the grandfather and grandmother with an axe but did not say why he had done so. He did tell them that he had deceived the

16 -16- two deceased into leaving their home by telling them that their daughter, who had been in Cape Town, was being raped. 40. At this stage of the testimony of this witness the state prosecutor, Mr Els, informed the court that he wanted to discredit the witness. Mr Els referred him to the statement he had made to the police on 12 July He denied having told the police that the accused had said that Nontsikelelo, the daughter of the deceased couple, was stabbed. He insisted that the accused had said that she was raped. He confirmed, as recorded in his statement, that the accused had not been induced to say anything. It was the accused who had wanted to say that he was sorry. 41. Prior to this witness being cross-examined, Mr Els handed in Exhibit T which is a document, signed by the accused and his legal representative, Ms Ntobe setting out certain admissions. These were that the identities of both deceased were not disputed and that no further injuries had been inflicted on either of the deceased from the time their bodies were removed from the scene until the post-mortem examinations were conducted on them. Further the findings in the two postmortem reports were also accepted as being correct. These admissions were duly recorded in terms of s 220 of the CPA. 42. Cross-examination of Andile Matoti revealed that Lolosi Matroshe had told him that the axe that the accused had chased him with had been taken out from under a bed by the accused. The police had not said anything to the accused

17 -17- at the police station before he apologised. He denied that the accused, when confronted about the murders, had said that he did not know what they were talking about. 43. Mzimkhulu Gladstone Mahotsi testified that on 11 July 1999 at about 8:00 am he received reports about two bodies. He went to look and saw that the bodies were those of Mr and Mrs Maqhina. From there he went to a house where a traditional ceremony was taking place. Lolosi Matroshe arrived and reported that the previous night the accused had threatened him with an axe that had blood on it. After reporting this to a residents group they went to accused's house but did not find him. Later they returned with the police who entered the house and found various articles under a bed. These were a paraffin heater, primus stove, blanket, umbrella, groceries, an electric meter box, two axes, one of which had blood on it, a radio and wall clock. They then accompanied the police to look for the accused and found him in Duncan Village. The accused was arrested and taken to the NU 12 police station where he was questioned by the police and told them of the articles he had hidden. The witness was present when the accused pointed out to the police where he had hidden a big plastic bag in the bushes. The bag contained a clock, a few oranges and some other articles. The accused had also pointed out a jersey with blood clots on it that was in a stream of dirty water. The accused had told the police that he had put it there. The accused had not been forced to volunteer this information. He had not seen any injuries on the accused nor had the accused been assaulted. 44. It emerged during cross-examination that the witness and other residents had

18 -18- been present when the accused told the police that he knew where the bag and jersey were hidden. The accused had not been assaulted by the police. At the ravine the accused had pointed out the places where the plastic bag and jersey were recovered. He could not remember the accused telling the police that he could show them the articles in Lolosi's shack. Lolosi had gone into the shack with the police and the accused but had not pointed out the jersey and the bag. Inspector Molosi had not used a stick to pick up the jersey from the water. Although the accused was handcuffed he had taken the jersey out of the water. At the police station the police had asked the accused to remove his trousers which he did. Lolosi had told the police that the accused had worn the trousers the previous evening. 45. Thereafter Mr Els informed the Court that he intended leading evidence of a statement that the accused had made. However, its admissibility was being contested as the defence alleged that the accused had been assaulted. This necessitated a trial-within-a-trial to determine whether the accused had made the statement freely and voluntarily. 46. The trial-within-a-trial At the commencement of the trial-within-a-trial Ms Ntobe, on behalf of the accused, confirmed that the defence disputed that the accused had made the statement freely and voluntarily. It was contended that the accused had been assaulted and coerced into making the statement. Mr Els then handed in the preliminary questionnaire (Exhibit 'K') annexed to the statement but withheld the

19 -19- statement itself from the Court. He also handed in an extract from the Occurrence Book of the NU 12 police station (Exhibit 'L'). 47. The first witness to testify for the state was Dannyboy Zanile Adonis, a senior magistrate in the district of Mdantsane. His testimony related to the questions in the preliminary questionnaire which had been asked of the accused and the replies thereto. Since these are all recorded in Exhibit 'K' I do not intend to recount his testimony except where it supplements or is explanatory of any questions and answers. When asked to comment on the accused's emotional state, since it had been recorded that the accused had cried at various stages, the witness said that the accused looked as if he was in a disturbed state. Upon completion of the statement the accused had said that he wanted to apologise to the family of the deceased and thereafter he would request the magistrate to ask a policeman to shoot him to death. This request the witness turned down since he was only there to take a statement from the accused. After completion he handed the statement to the policeman who had been waiting outside the office and the accused was escorted away. Prior to taking the statement he had not known about the killing of the deceased. 48. In cross-examination the witness said that the accused was in a disturbed state from the moment he began speaking but he did not enquire further into this. The accused had said that there, 'was a lot he wanted to tell him,' but he did not ask him to explain this as the accused was going to make a statement. He had not asked the accused on which parts of his body he had been struck with the fists

20 -20- and a stick and the accused had not toid him of any injury to his eardrum. While he had not asked the accused why he had said that the police would not treat him well if he made a statement to the police, he did ask him if anyone had forced him to make a statement. It was not his impression that the accused had come to make a statement to avoid being assaulted in the police cells. The accused had sobbed when the statement was read back to him. For this reason he asked the accused if he had understood as he wanted to be sure that he had understood everything. 49. A further series of questions and answers (Exhibit 'K2'), which were those the magistrate had recorded at the end of the accused's statement, was also handed n by the state. 50. In reply to questions from the Court the witness said that he did not consider either the accused's emotional or physical state to be such that he should not take a statement from him. There was no indication that any duress had been brought to bear on the accused to make a statement. He did not verbally coerce the accused nor did he question him in order to get him to commence with the statement. The witness himself understood Xhosa as he was Xhosa speaking and the interpreter's translation was close to word-perfect. The handcuffs had caused a discolouration of the skin on the accused's arms but there were no open injuries. The accused had not been handcuffed during the period that he made his statement. 51. Yoliswa Sister Mbangi testified that on 12 July 1999 she was an official interpreter

21 in the employ of the Department of Justice and was still so employed. She was present when the accused made the statement to the magistrate and interpreted from Xhosa into English and vice versa. She had a slight recollection of the accused. She, the magistrate and the accused were alone in the office. She remembered that the accused had cried now and again but had not displayed any difficulty in replying to the questions in the preliminary questionnaire. The accused had said he was making the statement of his own free will Crossexamination did not reveal anything of significance. Makaya Eric Marwanqa has been a member of the SA Police Service for the past 16 years. On 11 July 1999 he was with Inspector Molosi, Inspector Maseti, Sgt Gcukumani and several residents when the accused was arrested in Duncan Village. The accused was informed of his right to remain silent, his right to an attorney and that he was not obliged to make a statement or a confession. The accused had replied that he did not want a legal representative but would get one at the trial. The accused was taken to the NU 12 police station where he said he wanted to point out things in a ravine. He was warned that he was not obliged to point out anything but was nevertheless willing to do so. He accompanied Inspector Molosi and the accused to the ravine where the accused pointed out a jersey, which was in a stream, and a plastic bag. They returned to the police station and the accused was detained. Inspector Molosi asked the accused if he wanted to make a statement to him or a magistrate but told him that he was not forced to do so. When the accused said that he was willing to make a statement Inspector Molosi arranged for the accused to be taken to a magistrate. The

22 -22- accused was not assaulted or coerced into making the statement. 53. Cross-examination revealed that the accused had said that he understood his rights when they were explained to him. The accused had also said that he had left the goods in the ravine. Inspector Molosi and the accused walked in front while the witness attended to security because of the presence of residents. He saw the jersey being lifted out of the stream but was uncertain whether it was Molosi or the accused who did so. At the time the accused was handcuffed. 54. In reply to the Court's questions the witness said that members of the community were also involved in the case but were not put in the same room as the accused. He could not recall if the daughter of the deceased couple came to the police station on the same day or not but she had been there at some time. 55. Inspector Thembani Ndandani is a member of the SA Police Services. He was on duty on 11 July 1999 at the NU 12 police station as charge office commander from 7:00 am until 7:00 pm and made certain entries in the occurrence book. Entry 431 was made at 17:50 and recorded that Moses Mrabuli had been detained by D/Sgt Twetwa in regard to a murder investigation. As the charge office commander it was his duty to establish if the person detained had been injured or not. If the person claimed this had occurred an entry was be made in the occurrence book to record this. But there was no entry to this effect in respect of the accused. There was no entry either to indicate that the witness had visited the cells after the accused was detained and until he went off duty. At

23 -23-18:45 he handed over duty as charge office commander to Inspector Ketelo. 56. Under cross-examination he stated that while he had forgotten the accused's face he had spoken to the accused as he had made the entry that the accused had been detained. Even where a person did not have visible injuries he would still ask if he had any injuries or not. 57. Inspector Fumanikile Cornelius Ketelo is also a member of the SA Police Services. On 11 July 1999 he commenced duty at the NU 12 police station as charge office commander at 19:00. He took over from Inspector Ndandani at 18:45 as recorded by entry 434 in the occurrence book. He did not personally visit the cells. Certain other policemen on duty with him had done so and had reported to him. Entry 437 recorded that Sergeants Nunge and Dweba visited the cells at 20:00 and reported that it was all quiet in the cells. Similarly, entries 438 to 440 and 442 to 449 recorded that other policemen had visited the cells and reported that there were no complaints from the prisoners. At 6:35 the next morning he handed over duty to Sgt Ntshingwa. 58. It emerged during cross-examination that he personally visited the cells when taking over duty from Inspector Ndandani. He had counted the prisoners and none of them had complained of any injuries. 59. Victor Bonga Dweba testified that he was a member of the SA Police Services and was stationed at the NU 12 police station. On 11 July 1999 he was on duty

24 -24- and visited the police cells with Sgt Nunge at 20:00 and reported to Inspector Ketelo that the prisoners did not have any complaints. At 01:00 on 12 July 1999 he and Sgt Nunge again visited the cells and at 03:00 and 6:00. On each occasion there were no complaints from the prisoners At 07:00 he went off duty. 60. Cross-examination revealed that at 20:00 on 11 July 1999 when he visited the cells the prisoners were still awake. The prisoners were sitting with blankets around them and he had asked if there were any complaints. None of them lodged a complaint. 61. The evidence of Boyisile Elijah Mdze is that on Monday 12 July 1999 he took the accused, at the request of Inspector Molosi, to room 107 at the magistrate's court at Mdantsane at about 11:20 am. He waited outside the office while the accused was inside with Magistrate Adonis. Later the accused was handed back to him with a document which he handed to Inspector Molosi. He did not see any injuries on the accused nor had the accused said anything. All that he was asked in cross-examination was whether he had opened the cell door but he said that he had not done so. 62. Elliot Molosi is an inspector in the SA Police Services and is attached to the serious violent crimes unit in East London. He was the investigating officer in respect of the counts of murder and robbery. He was present on 11 July 1999 when the accused was arrested in Duncan Village and explained to the accused that he had the right to legal representation. Further, he did not have to say

25 -25- anything but if he did it could be used as evidence against him. The accused was asked if he understood and he replied that he did. The accused was then taken to the NU 12 police station. He, Inspector Marwanqa and the accused went into an office and he again explained his rights to him. The accused said that he was not denying anything and that there were articles in the bush near where he stayed. He explained to the accused that he was not obliged to point out anything and if he wanted an attorney he could get an attorney of his own choice or, if he did not have funds, the government could obtain an attorney for him. The accused said that he understood and did not want an attorney at that moment. 63. Thereafter they proceeded to a stream in a ravine near to the accused's house where the accused pointed out a jersey in it. The witness used a branch to lift the jersey out of the water. A short distance from there the accused pointed out a big bag, usually called a Transkei bag, which was hidden in the bush. The bag contained various items, namely, a clock, a briefcase, a floral dish with a lid, 2 powder blue plates and about 5 oranges. Throughout the accused's hands had been handcuffed behind his back. They had not entered a nearby shack. 64. They returned to the police station where he again explained the accused's rights to him as he was going to charge him. He asked the accused if he wanted to reply to anything about the case. The accused replied that he was not denying anything and there was a lot he wanted to say. He again warned the accused that he did not have to say anything but if he did he could say it to him or a magistrate. The accused said he understood and wanted to speak to a

26 -27- He understood, however, that no positive findings had been made. 67. During cross-examination Inspector Molosi denied that the accused had not been informed of his legal rights. He also denied that he had forced the accused to admit guilt nor had he told the accused he would rot in gaol without bail if he did not do so. In regard to the recovery of the goods the accused had said he wanted :o clear his conscience and that he would take them to where the goods were in the bush. The accused had not told him that the goods recovered from his house had been brought there by Lolosi. Nor had the accused said that Lolosi had left further goods in his shack and that the accused would take them there. They firstly recovered the jersey and then the bag. It was untrue that Lolosi had pointed out either the bag or the jersey. He had not specifically asked the accused if he wanted to make a statement. It was the accused's own decision. He had not assaulted the accused with his fists or an umbrella stick. The accused was provided with a pair of trousers to replace the pair taken from him. 68. In re-examination Inspector Molosi stated that the person Lolosi Matroshe had died and had not been a suspect as there was no evidence linking him to the crimes. The accused had not asked to see a doctor nor had he laid a charge of assault against any one. 69. In reply to the Court's questions Inspector Molosi said that he had been present in court on the occasion of the accused's first appearance. The accused had not complained to the magistrate of being assaulted. The accused had been

27 -28- detained at Mdantsane prison which had a hospital section and there would, therefore, have been a doctor in attendance. 70. In further cross-examination it was put to the witness that when the accused appeared in court he had told the magistrate that he had been injured. The witness denied that the accused had done so. He also denied that the magistrate had instructed the police to take the accused to see a doctor and that the police nad failed to carry out this instruction. 71. Thereafter in terms of s 235 of the CPA, Mr Els handed in a certified copy of the record of the proceedings in the Magistrate's Court in the matter of the State vs Maby Moses Mrabuli (i.e the accused) under case no. 1817/1999 (Exhibit 'M'). These proceedings related to the accused's first appearance in the magistrate's court. There was no objection from the defence to it being tendered in evidence. This concluded the state case in the trial-within-a-trial. 72. The accused, Moses Maby Mrabuli, elected to testify. He did not dispute that he was arrested in Duncan Village on 11 July The police, he said, had drawn their firearms and pointed these at him and handcuffed him. He was manhandled and asked where the axe was that he had used in the killings and had replied that he knew nothing. He was taken to the NU 12 police station where he was questioned about a number of things by the policemen until he became dizzy. He was again asked about the axe and had said that he had no knowledge thereof except for certain articles which Lolosi had asked him to keep until Lolosi had

28 -29- completed his shack. Lolosi had handed him a bag with clothing and other articles wrapped in a blanket but he had not opened these. Lolosi had also told him that there were other articles in his shack which they fetched and brought to his house. 73. He had told the police that there were articles in the shack and that they could fetch these. He together with the police and the others who had testified went to the shack which did not have a door, but did not find anything there. When they came out of the shack Lolosi told the police there were other articles hidden in the bushes. Inspector Molosi escorted him to this place and he noticed that it was the bag Lolosi had left in the shack. He cannot remember who took the bag out as there was a commotion. On the way back to the motor vehicle Lolosi pointed out a jersey in a stream and Inspector Molosi took it out with a branch. He, the accused, had not said anything. 74. He denied that the police had informed him of his legal rights. He had also not told the police that he wanted to make a statement. Prior to making the statement he was assaulted at the police station and told to admit that the articles found in his house belonged to him. He was smacked, punched and kicked. The person who had kicked him wore boots. During the assault his hands were handcuffed behind him. When he discovered his ear was damaged because of the assault he agreed to make a statement to a magistrate and the assault stopped. 75. He did not want to say anything to the magistrate but only agreed to do so in

29 -30- order to stop the assault. He wanted an opportunity to tell someone who could assist him with what was happening to him. Thus he told the magistrate of the assault and that the police had tightened the handcuffs when he complained that these were hurting him. The magistrate, he said, had not asked him if he wanted the services of an attorney. When Ms Ntobe pointed out to the accused that the magistrate had recorded that he had said he only wanted an attorney at the trial, he said that he (i.e accused) was possibly making a mistake. 76. He admitted he had told the magistrate he had a lot to tell him but had not told him everything in the statement. He claimed he had not made a statement to the magistrate but had said something to him. When asked why he had sobbed when the statement had been read back to him he said it was because he had been arrested for something he had not done and because he was assaulted. He had not admitted to the police that he had committed any crime nor had he pointed out the bag or jersey. He had also not admitted that he had worn the jersey the previous night. 77. It emerged from cross-examination by Mr Els that the assault by Inspector Molosi had taken place in the presence of Mzimkhulu Mahotsi, Andile Matoti and Nomvuyiso Makhubalo. He was smacked twice on his left ear and punched a number of times in his chest with force. He was unable to breathe as he was punched in the area of the stomach just below the rib cage. He was also punched on the left side of his body. As a result of the assault his left side was sore for a week and he experienced pain when breathing. However, there were

30 -31- no bruises on his body. He was standing when he was smacked but it caused him to go down and to sit on the floor. He then said that he did not actually sit on the floor but sat on a chair. Moreover, it was not because of being smacked but because he was punched in the solar plexus. He had not counted the number of punches that were delivered to his ribs on the left side of his body. Prior to this assault he had been assaulted with a wooden umbrella stick which then broke. This occurred next to a motor vehicle outside the police station when he was being told to point out the articles. Inspector Molosi had taken the stick from a motor vehicle and struck him a number of times across his back causing him to scream. At the time his hands were handcuffed behind his back. The witnesses in this case were present when he was assaulted. Another policeman, whom he described as a short policeman, had smacked him during questioning by Inspector Molosi and this was followed by Molosi punching him. These punches were not delivered on the left or right side of his body but all over his body except his face. It was the short policeman who had smacked him in the face and insulted him. His nose had not bled but he sustained a small cut on the lower left side of his lip which bled. His legal representative had not asked him how he was assaulted but he had told her of the injuries he had sustained. It was put to the accused that it had not been put to Inspector Molosi in cross-examination that in addition to punching and hitting him with a stick that Molosi had also smacked him. He replied that his

31 -32- legal representative had meant he had been smacked. He was asked to explain why it was put to Molosi that the assault with the umbrella stick had occurred in the office and not outside near a motor vehicle. He replied that he had heard what his legal representative had put to Molosi but did not see any difference between inside or outside. 81. The accused was also asked if he had been kicked but replied that he could not say if this had occurred or not. A number of things had been done to him which he could not remember. When pressed on this issue he said he had been kicked on his ankles but could not remember by whom. He was certain he had told his legal representative this and did not know why it had not been put to any of the witnesses. He had been consulting with her continuously throughout the trial but could not explain why he had not drawn her attention to this. He wanted the Court to note that it was painful to be in custody for such a long time and that he only had one brain. He could, therefore, not remember everything in the manner in which it had happened and could have forgotten certain things. 82. He insisted that the police had not explained his legal rights to him although the magistrate had told him of certain rights. He had not indicated any other injuries, besides those caused by the handcuffs, as he did not recognise the person as a magistrate. He only knew a person to be a magistrate when he wore a gown and sat in court. Even though the person had told him that he was a magistrate he had not shown him anything to substantiate that he was one. Also, he had not shown the other injuries to him as he had not told him everything. He could offer

32 -33- no reason for not telling the magistrate that he had been smacked; further, he had not told him that he had been kicked as he was in a state of shock and his mind was not working properly. For the same reason he had said that he was assaulted by one policeman only. He had not shown the cut on his lip but had mentioned the injuries to his ear and solar plexus. He did not know why any of this had not been recorded at the time he made the statement. 83. He had also not admitted to Inspector Molosi that he had killed both deceased. When he appeared in court he had told the presiding magistrate that he had been assaulted and that his ear had been injured. He did not know why the magistrate had not recorded this on the court record. He had shown the marks on his wrists but did not think of showing any other injuries. He had also not known that he was required to do this. At the prison he told the doctor of his injuries and his ear was examined. The doctor had not told him anything but merely gave him some Panado tablets. The matter was not taken further at the prison as they did not care and he had not laid a charge of assault. 84. At court the magistrate had informed him of his right to legal representation and told the police to take him to room 38 for the purpose of applying for legal aid. But, the police had failed to do this. At his next appearance the magistrate enquired if he had obtained a legal representative and he related to the magistrate what had occurred. The magistrate noted this and again instructed a court official to take him to the legal aid officer. Once again this was not done. This carried on until he gave up hope of getting a legal representative. He had