THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 1166/2018
In the matter between:
SALEEM QURASHI

FIRST APPELLANT
FARHAN ULLAH

SECOND APPELLANT
SHABBIR GULLAM

THIRD APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Qurashi and Others v The State (Case no 1166/2018) [2022]
ZASCA 118 (22 August 2022)
Coram:

PONNAN, VAN DER MERWE, and CARELSE JJA and

MAKAULA and PHATSHOANE AJJA
Heard:

10 May 2022
Delivered:

22 August 2022
Summary:

Criminal law and procedure – admission of evidence pursuant to
search and seizure allegedly in violation of constitutional right to privacy and fair trial
– distinction between real and self-incriminatory or conscriptive testimonial evidence
– hearsay evidence – admissibility of extra-curial statements by a non-testifying
witness.

ORDER

On appeal from: Free State Division of the High Court, Bloemfontein (Rampai J,
sitting as court of first instance):
The appeal is dismissed.

JUDGMENT

Ponnan JA and Phatshoane AJA (Van der Merwe and Carelse JJA, and Makaula
AJA concurring):

[1] The first, second and third appellants, Saleem Qurashi, Farhan Ullah and
Shabber Ghulam, stood trial as accused 2, 5 and 6 respectively, together with four
others, all Pakistani nationals,1 before the Free State Division of the High Court,
Bloemfontein. Eighteen charges were levelled against the first two and 17 against the
third. Counts 2, 3 and 7 were withdrawn at the commencement of the trial, and at the
close of the State case, the prosecutor intimated that counts 5, 6, 7 and 8 were not
being persisted in. Eleven counts thus remained, namely: the contravention of s
9(1)(a) of the Prevention of Organised Crime Act 121 of 1998 (POCA) (count 1); two
counts of robbery with aggravating circumstances (counts 9 and 16); five counts of
murder (counts 10, 11, 12, 13 and 17); kidnapping (count 14); attempted extortion
(count 15); and, a contravention of s 18(2)(a) of the Riotous Assemblies Act 17 of
1956, being a conspiracy to commit kidnapping (count 18) – a charge that was not
preferred against the third appellant. In what follows, it may be convenient to refer to
the appellants by their appellation before the trial court, namely accused 2, 5 and 6.

[2] Count 1 relates to the alleged participation of the accused in organised criminal
gang activity in contravention of s 9 of POCA. And, that as part of a pattern of such

1 The fact that the accused and several of the witnesses were Pakistani nationals would appear to have
resulted in names not always being consistently spelt. For example, whilst the name of appellant 3 is
reflected in the indictment as Shabir Gullam, the evidence seems to suggest that he is known as
Shabber Ghulam.

activity, the accused either individually or collectively committed the various offences
set out in the indictment. The prosecution alleged that in November 2007, the four
deceased in counts 10 to 13, Malik Yasser Awan, Amanullah Nusrullam, Shabodien
Hussein and Majid Saleem, who were also Pakistani nationals, were lured to Clocolan
in the Free State, were they were robbed of a BMW sedan motor vehicle, four Nokia
cellphones and two firearms (count 9). They were then murdered and buried in a
shallow grave (counts 10, 11, 12 and 13).

[3] On 4 March 2008, the accused allegedly kidnapped Zia Khan and deprived him
of his liberty at 6 Van der Spuy Avenue, in Bloemfontein (count 14). They then
threatened to kill Zia Khan unless his relative, Rashid Anwari Khan, paid them R2
million (count 15). Zia Khan was also robbed of his Opel Corsa bakkie and a cellphone
(count 16). Following the killing of Zia Khan (count 17), he was buried in a shallow
grave at 6 Van der Spuy Avenue. The State further alleged that accused 1, 2 and 5
conspired with Ifthkar Ahmed to kidnap Rashid Khan (count 18).

[4] Save for count 17, on which the appellants were convicted of culpable homicide
instead of murder, the appellants were convicted as charged and each sentenced to
imprisonment for life. The present appeal, with the leave of the trial court, is directed
solely against conviction.

[5] In S v Hadebe and Others, Marais JA had occasion to repeat what had
previously been said by him in Moshephi and Others v R 1980-1984 LAC 57 at 59F- H,
namely that:
‘The breaking down of a body of evidence into its component parts is obviously a useful aid to
a proper understanding and evaluation of it. But, in doing so, one must guard against a
tendency to focus too intently upon the separate and individual part of what is, after all, a
mosaic of proof. Doubts about one aspect of the evidence led in a trial may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when it is evaluated again
together with all the other available evidence. That is not to say that a broad and indulgent
approach is appropriate when evaluating evidence. Far from it. There is no substitute for a
detailed and critical examination of each and every component in a body of evidence. But,

once that has been done, it is necessary to step back a pace and consider the mosaic as a
whole. If that is not done, one may fail to see the wood for the trees.’2

[6] The approach which commended itself in Moshephi seems appropriate in the
particular circumstances of this matter. This, all the more so, because the manner in
which the evidence was presented was oftentimes haphazard and lacking in any
logical coherence, resulting in a rather protracted trial that generated a record in
excess of 2500 pages. Thus, to focus too intently upon each individual part on which
the prosecution case rested, is likely to result in a judgment that would be indigestible.
The mosaic as a whole lends inescapably to the factual foundation upon which the
logical deduction must rest that each of the appellants are indeed guilty of the offences
with which they have been charged. When viewed against the tapestry of all of the
evidence, the claim by them that they were wrongly convicted by the trial court and
that the appeal must consequently succeed cannot be sustained.

[7] It is not necessary to analyse the evidence adduced on behalf of the
prosecution in granular detail, rather it would suffice to paint the evidence in broad
strokes with a view to demonstrating that the broad hypothesis sought to be advanced
by the prosecution finds compelling support in the evidence.

[8] The prosecution case rested, in the main, on:
(a) the viva voce testimony of inter alia Ms Zainub Saleem, Ms Nazira Awan, Mr Rashid
Khan, Mr Steven Musetsi Latela, Mr Ifthkar Ahmed, Mr Leon van Wyk Rossouw,
Warrant Officer Eben van Zyl and Warrant Officer Linda Steyn;
(b) the exhibits seized and the discovery of the body of the deceased in count 17,
pursuant to a search at 6 Van der Spuy Avenue, Bloemfontein;
(c) the exhibits seized following upon the arrest of the various accused in Kestell and
Pietermaritzburg; and
(d) the evidence of Ms Johanna Heyneke, the forensic liaison manager of Vodacom,
relating to various cellphone numbers, pursuant to a subpoena issued in terms of s
205 of the Criminal Procedure Act 51 of 1977 (the Criminal Procedure Act); and

2 S v Hadebe and Others 1998 (1) SACR 422 (SCA) at 426E-H.

(e) several statements, as well as a pointing out by Mr Rehman Khan made to Captain
Francois James Lux, which led to the discovery of the bodies of the four deceased in
counts 10 to 13.

[9] The evidence of each of Ms Zainub Saleem, Ms Nazira Awan and Mr Rashid
Khan, in that order, may be a useful starting point. Ms Zainub Saleem (the wife of
Saleem Majid, the deceased in count 13) testified that her husband had travelled from
Cape Town, where they resided, to Johannesburg on 7 November 2007. She had daily
telephonic contact with him over the following days, until Saturday 10 November 2007,
when unable to reach him because his phone was apparently switched off, she made
contact with Amanullah Nusrullam (the deceased in count 11). Mr Nusrullam told her
that he, her husband, Shabodien Hussein (the deceased in count 12) and Malik Yasser
(the deceased in count 11) had travelled from Johannesburg to Clocolan (a place that
she had not previously heard of) with a person named Qurashi. He informed her that
her husband was in a meeting with Farhan and Shahid and that he will get him to
return her call. The next day she spoke to her husband, who confirmed that he had
travelled from Johannesburg to Clocolan with Saleem Qurashi; and, that he had
concluded his business and would be returning to Cape Town either that evening or
the day thereafter. That was the last time that she spoke to him.

[10] When, by 15 November 2007, Ms Saleem was still unable to get hold of her
husband she travelled to Johannesburg. A case docket in respect of a missing person
was opened at the Booysens’ police station, whereafter she went to Clocolan. The
Clocolan police took her to what was described in the evidence as the A-frame house,
ostensibly because Pakistani nationals lived there. At the A-frame house she
encountered accused 4 (Ali Mamo Mazhir) and another person. Despite confronting
him with the fact that she had knowledge that her blue BMW vehicle, in which her
husband had travelled from Johannesburg to Clocolan, had been seen at the house,
accused 4 was not forthcoming with any information.

[11] The police then took her to another house in Andries Pretorius Street, in
Clocolan, which appeared to be unoccupied and was locked. As they walked around
the yard, they came upon a little shed behind the house, in which she recognised two
CD covers, which according to her had been in the door of her BMW. She went back

to Johannesburg that afternoon and returned the next day to Clocolan together with
Nazira Awan, the wife of Malik Awan Yasser (the deceased in count 10). Accompanied
by the police, they called on the house in Andries Pretorius Street. On this occasion
they were able to gain access to the house with a key supplied by Mr Latela. Amongst
the documents found inside the house, were an asylum seeker permit for accused 2
(Ejaz Ahmed) and Pakistani passports issued in the names of Afzal Hussein and
accused 2. Some thirteen months later on 5 December 2008, she received news that
four bodies – one of which she subsequently identified as being that of her husband –
had been found. She later also had occasion to identify the blue BMW after it had been
recovered.

[12] Ms Awan testified that she had last seen her husband alive on Friday 9
November 2007, when he dropped her off that morning at the taxi rank so that she
could make her way to work. She spent that night after work at her sister’s home. The
next day, when she phoned her husband to ask him to pick her up from her sister’s
place, he replied that he could not because he was on his way to Clocolan to visit
Shahid. He informed her that he was with Majid, Amanullah, Shahab (an apparent
reference to the deceased in counts 11, 12 and 13) and Saleem Qurashi. At around
midnight she spoke to him again, when he intimated that he would see her the next
day. The next morning he told her that he was going ‘somewhere very far’ and that
she must ‘look after herself’. Thereafter, she was unable to contact him telephonically
because his phone appeared to have been switched off. She then reported to the
police that he was missing. Having managed by means of a sim-swap, and with the
assistance of Vodacom, to ascertain the last five numbers dialled from his cellphone,
she called each of those numbers. The second number called was answered by
someone who identified himself as Farhan. Subsequent attempts to contact that
number, however, went unanswered. She testified that she had previously seen the
deceased in count 11, Amanullah Nusrullam, who had come to her house with Saleem
Majid (the deceased in count 13). Saleem Qurashi and Shahid (who she identified
respectively as accused 2 and 1 before the trial court) had also visited her home. For
the rest, she confirmed the account of Ms Zainub Saleem.

[13] Mr Rashid Khan and the deceased in count 17, Zia Khan, were business
partners in a supermarket in Lesotho, where they shared a house in Maputsoe.

Accused 1 (Shahid Saeed), who was a friend of Zia Khan, together with accused 2
(Saleem Qurashi) and 6 (Shabber Ghulam) spent approximately one month at their
house about three months before the disappearance of Zia. In that time, accused 4
and 5 (Farhan Ullah) also visited. On 3 March 2008, Zia Khan travelled to Maseru for
business purposes. When he returned that afternoon, he was accompanied by
accused 1, 2 and 6. After dinner that evening accused 1 left and 2 and 6 slept over.
The next morning Zia Khan left home together with accused 2 and 6 in his black Corsa
bakkie. He took R35 000 with him to meet a tax obligation with the revenue authorities
in Maseru. He was accompanied by accused 2 and 6. Later that day, Rashid tried
unsuccessfully to contact Zia telephonically. He then phoned accused 6 at about 3 pm
that afternoon, who told him that Zia had returned to Maputsoe. Rashid was then
unable to contact either Zia or accused 6 later that day. Zia’s disappearance was
reported thereafter to the Maseru police.

[14] Eight days later, Rashid received a telephone call; he was told: ‘Do you want
your brother alive. You have to arrange R2 million’. He recognised the caller as
accused 1. When he was contacted thereafter, he asked to speak to Zia. He was not
put through to Zia, but heard a recorded message in Zia’s voice saying ‘Rashid,
Rashid, Rashid’. Rashid managed to raise the R2 million and was contacted at regular
intervals thereafter, but refused to undertake delivery until he had spoken to Zia. A
friend suggested that Rashid contact Mr Leon van Wyk Rossouw, a private
investigator. They met in Ficksburg on 16 March 2008. Rossouw took possession of
his cellphone and downloaded and analysed its call history. On the next day, Colonel
Topkin called on, and interviewed, Rashid in Ficksburg. On 18 March, he was told by
Rossouw that a body had been found, which he was asked to identify. He
subsequently identified the body as that of Zia Khan. He was not contacted again
about payment of the ransom. Rashid thereafter returned home to Pakistan. Whilst in
Pakistan, he received three threatening calls. He recognised the caller, who was
speaking Urdu, as accused 1. Rashid saved the three numbers on his phone.

[15] According to Rossouw, he was provided with the cellphone number
0763820620 by Rashid Khan, as the number that had been used by one of the alleged
kidnappers to contact him. Although he did not have access to the data systems of
any of the cellphone providers at that stage, he did have a program to process and

analyse cellphone data. Rashid had also furnished him with the names of the three
persons, namely accused 1, 2 and 6, who he allegedly suspected of being involved in
Zia’s kidnapping and their contact numbers. Rossouw had first approached W/O Van
Zyl, who was at that stage part of a task team investigating vehicle theft, with regard
to Zia’s Corsa bakkie. He had also approached Captain Niemand of Crime Intelligence
and Colonel Kruger. Captain Niemand informed him that he (Niemand) had
established that the cellphone number 0763820620 was active in the Olive Hill area
of Bloemfontein. Rossouw then called on estate agents in that area, which led him to
6 Van der Spuy Avenue, a property situated in Olive Hill, Bloemfontein.

[16] Rossouw was evidently dissatisfied with the lack of progress on the part of the
police in the investigation of Zia Khan’s disappearance. At that stage, 6 Van der Spuy
Avenue had only been observed for approximately two hours by the police, who
reported that the place was unoccupied. Rossouw then contacted Warrant Officers
Van Zyl and Steyn of organised crime, who were known to him. By the time he first
approached them for assistance, he had already established that a person named
Ejaz Ahmed, who had furnished one of his contact numbers as 0763820620, had
signed a lease agreement in respect of 6 Van der Spuy Avenue. He sought and
obtained permission from Captain Niemand to secure a key from the letting agent for
the premises. Having received the key, he together with Warrant Officers Van Zyl and
Steyn entered the premises. The evidence found at 6 Van der Spuy Avenue included:
the body of Mr Zia Khan, which was buried in a shallow grave; Vodacom starter packs
for Sim numbers 0763820594 and 0763820620 as well as an instruction manual for
an Opel Astra vehicle. Rossouw recognised the latter number as the number that was
used to contact Rashid Khan by one of Zia Khan’s alleged kidnappers and was also
reflected on the lease agreement for 6 Van Der Spuy Avenue as one of the contact
numbers for the lessee, Ejaz Ahmed.

[17] The search at 6 Van der Spuy Avenue on 18 March 2008 was described by
counsel for the appellants as a ‘seminal moment in the investigation of the case’. Prior
thereto, there was no information with regard to the whereabouts of Zia Khan and
limited information as to the possible suspects. On 10 April 2008, and after having
obtained information from Vodacom pursuant to a subpoena issued in terms of s 205
of the Criminal Procedure Act relating to the various cellphone numbers that the police

then had to hand, Rossouw and Van Zyl set out to Howick (or more accurately the
GPS co-ordinates obtained from Vodacom for the cellphones in question that pointed
them in that direction). On their way, they received information which led them to
Kestell, where they arrested accused 1, 2 and 5 as well as Tammy MacDonald and
Iftkhar Ahmed, all of whom were seated in an Opel Astra.

[18] The evidence found at Kestell included: the passports of accused 1, 2 and 5
and a Vodaphone 125 cellphone bearing the sim number 0714903366 in the
possession of accused 5. The contact list on that Vodaphone 125 included the
following: Shabber 0797928808, Shahid2 0728776633 and Shahid4 0763820620 (as
already pointed out this number had been used to contact Rashid Khan by one of Zia
Khan’s alleged kidnappers and appeared on the lease agreement for 6 Van Der Spuy
Avenue). Also seized was a book containing contact names and numbers, which
included the following: Farhan 0763820594 (which Rossouw recognised as a number
on one of the starter packs found at 6 Van Der Spuy); Ali 0738602000; Ejaz
+3538633480444; Rashid 072 655 4447 (which Rossouw recognised as Rashid
Khan’s number); Zia +26658569716 (this number was known to Rossouw as Zia
Khan’s number as furnished to him by Rashid Khan); and Ifthkar 0835679156. There
was yet a further number alongside the name Farhan on another page of the book,
namely 0790822420 (this was one of the numbers given to Rossouw at the
commencement of his investigation into Zia Khan’s kidnapping; as belonging to one
of the persons last seen with Zia Khan). So too, was the number 0797928808, which
was listed alongside the name Shaber. Rossouw also recognised the number
0784366666, which was listed alongside the name Mazhar, as one that was reflected
on the lease agreement for 6 Van Der Spuy Avenue, as an alternative contact number
for the lessee, Ejaz Ahmed.

[19] Having received information from accused 5, Rossouw and Van Zyl made their
way with him to Howick. Accused 5 was detained at the Howick Police cells and
Rossouw and Van Zyl spent the night at the Howick Falls Hotel. The next morning,
namely 11 April, and whilst at the hotel, Van Zyl interviewed Ms Alma Dixon, an
employee of the hotel, who later testified that accused 1 arrived in a Black Corsa
bakkie and spent the night of the 29 March 2008 at the hotel. He reflected his address
as Maseru, Lesotho and telephone number as 071165993 in the guest registrar.

[20] That afternoon, and again on the strength of information furnished to them by
accused 5 the previous day, Van Zyl and Rossouw made their way to
Pietermaritzburg; first to Bayat Street and then to Harvard Street. Accused 3, 4 and 6
were arrested at Bayat Street. The evidence found at Bayat Street included: the
passport of accused 4; a Nokia 3410 (bearing an MTN Sim card with number
0784366666) and a copy of accused 3’s passport. The evidence found at Harvard
Street included: a box for the Vodaphone 125 cellphone found in the possession of
accused 5 in Kestell; an invoice from B4U in the name of S Khan for that cellphone;
an envelope addressed to Farhan with cellphone number 0790822420 (one of the
numbers which by this stage had come to feature quite prominently in the
investigation); the passport of one Muhammed Ali and another envelope sent by
Muhammed Ali addressed to Farhan Ullah. On his return to Bloemfontein from
Pietermaritzburg, Rossouw was able to analyse the cellphones found on each of
accused 3 and 5 and two sim cards allegedly belonging to accused 1 that was found
in a black packet in the Opel Astra at the time of their arrest.

[21] According to Steyn, after the discovery of the body of Zia Khan they received
information that the persons involved in his death were also linked to a Booysens’
docket pertaining to the disappearance of four Pakistani men. After attending on 6 Van
Der Spuy Avenue with Rossouw and Van Zyl, she opened a docket at the Clocolan
police station. Inspector Mokgotu was initially the investigating officer, however, when
he took ill during June-July, she was appointed by Colonel Topkin to take over the
investigation. At that stage, accused 1 to 6 had already been arrested. In December
2008, accused 7 (Ali Tanveer) and one Rehman Khan (a cousin of accused 5 and 7)
were arrested after their photographs had been published in a local newspaper.
Pursuant to a pointing out made by Rehman Khan to Captain Francois Laux on 4
December 2008, the bodies of the four deceased in counts 10 to 13 were discovered
in a shallow grave approximately one metre deep in front of a chicken run some 10
metres from the back door of the house at 42 Andries Pretorius Street. Rehman Khan,
who was 19 years old and afraid, was then placed in witness protection at his request,
until he apparently fled about one week before the commencement of the trial. In the
course of her investigation, Steyn obtained several statements from Rehman Khan.

[22] Mr Ifthkar Ahmed testified that he had initially met accused 1 and 2 through an
acquaintance known as Shan. Thereafter he was contacted by Shan, who told him
that accused 1 wanted to meet with him. He then received a phone call from the latter,
who said that he required Ahmed’s assistance to secure a property and proposed that
they meet in Qwa Qwa. Ahmed suggested that they meet in Kestell instead. On
Thursday 10 April 2008, Ahmed, who was accompanied by a friend, Tammy
McDonald, drove to Kestell, where he met accused 1, 2 and 5 at the Excel garage.
Whilst seated in a blue Opel Astra, which was being driven by accused 2, Van Zyl and
Rossouw arrived and they were arrested. At the Kestell police station, where he
shared a cell with accused 1, the latter expressed the hope that the police would not
find the BMW car or Opel Corsa Bakkie, which he stated were in Lesotho in the
possession of a person by the name of Makara or the bodies of the ‘four guys from
Johannesburg’. The next day they were transported to the Bloemfontein police station,
where he shared a cell with accused 2. Accused 2 told him that they had kidnapped
four people from Johannesburg, ‘with their own BMW, a blue car’ and took them to
Clocolan in the Free State. Accused 2 phoned Ejaz Zodah, who was then in
Johannesburg and allegedly the gang leader, and told him ‘minus 2’. Later, he phoned
him again to tell him ‘minus 4’ – a reference, so it would seem, to the fact that initially
two and thereafter all four had been killed. Ejaz Zodah sent accused 6 to confirm that
the four individuals had indeed been killed. Accused 2 also said that all four, who had
been shot, were buried in one grave.

[23] Accused 2 further told Ahmed that they had kidnapped Zia Khan and taken him
to Bloemfontein, where a friend had organised a place for them. It was there that Zia
Khan was killed. Although he was not present when Zia Khan was killed, when he
arrived later that day he washed, dressed and then buried the body. As accused 2
described it, the killing of the four deceased, who were members of a rival gang, was
because ‘they want to put the gang down to come out on top’, whilst the killing of Zia
Khan was not gang-related, but ‘for money’.

[24] It is against that broad factual backdrop that the appeal falls to be considered.
The appeal rests upon four main foundations: first, the admission of evidence, which,
so it is asserted, was obtained unconstitutionally and which infringed the appellants’
right to privacy and to a fair trial; second, the admission of hearsay evidence and the

prominent role that such evidence played in the conviction of the appellants; and, third,
the credibility findings made by the trial court in favour of the prosecution witnesses
and against the appellants.

As to the first:
[25] It is contended that the search of the premises and seizure of exhibits at 6 Van
der Spuy Avenue in Bloemfontein violated the appellants’ right to privacy. So too, the
search of their persons, vehicles and houses upon their arrest. When Rossouw was
testifying, counsel for the appellants raised the following objection:
‘At this stage M’Lord, I would like to indicate my position that I have, I have a problem, I object
against the admissibility of the evidence that the witness is going to tender in respect of
exhibits which was found on this specific premises as well as his further evidence. M’Lord, the
admissibility of that is attacked firstly on the basis that the evidence was obtained unlawfully
by this specific witness that is currently testifying. His actions were not sanctioned by law and
therefore I will propose to His Lordship that that evidence is inadmissible on that basis alone.
M’Lord, furthermore, secondly I would also propose to His Lordship that the evidence that was
obtained was in breach of Section 14 of the Constitution which deals with the privacy rights of
every citizen or every person. Now M’Lord, I am mindful of the fact that Section 35 of the
Constitution, subsection 5 of that Section, provides that any evidence which was obtained
unconstitutionally must be excluded unless it will not have the effect on the fairness of the trial
of the accused or else if it would be in the interest of justice. So M’Lord, my submission would
be that His Lordship does have discretion to allow evidence which was unconstitutionally
obtained, if it does not affect the fairness of the trial or if it is in the interest of justice.
Now M’Lord, my submission in this effect is to determine that admissibility, M’Lord needs to
have a trial within a trial. Now I am mindful of the fact that my learned friend will probably argue
to His Lordship that the onus in respect of whether there is a constitutional infringement will
obviously lie with the accused and if that is the argument I am in agreement with that, that is
so, there is authority for that. However whether this information was obtained lawfully that is
another question M’Lord and that I do not bear the onus, the State has the onus to show to
His Lordship that that evidence was in fact obtained lawfully.
M’Lord, if I may assist my learned friend in that respect, I say it is unlawfully because as a
private detective or a private person, the witness does not have the legal power to first of all
enter a premises, to search a premises, to search a person found on a premises and to gather
information at such a place, because of that M’Lord I submit that there is a need for a trial
within a trial where that point is, admissibility must be determined first before His Lordship
needs to hear the remainder of his evidence, as it pleases.’

[26] The prosecutor agreed with the contention that to determine whether or not the
evidence in question (which was not identified by counsel for the accused) was
admissible, a trial within a trial had to be held. And, the trial court was evidently
persuaded to follow that course. In that, in my view, it was wrong. What is more, the
trial court proceeded to do so without so much as even attempting to identify the
evidence, the subject of the admissibility trial. Be that as it may, the starting point must
be an appreciation that a notable feature of the Constitution’s specific exclusionary
provision (s 35(5)) is that it does not provide for the automatic exclusion of
unconstitutionally obtained evidence. Evidence must be excluded only if it (a) renders
the trial unfair; or (b) is otherwise detrimental to the administration of justice. As no
evidence was adduced on that score on behalf of the appellants, the trial court was
simply unable to make that assessment. Moreover, in this regard it is perhaps
important to recognise the distinction between real and testimonial evidence, and that
unfairness in the method of obtaining the evidence does not necessarily result in
unfairness in the trial. Importantly, here we are not dealing with ‘self-incriminatory’ or
‘conscriptive’ evidence, where the so-called alleged constitutional infringement has
resulted in the creation of evidence which would not otherwise exist. The appellants
were not conscripted to create the evidence against themselves (such as for example
a self-incriminating statement) upon which the prosecution now seeks to rely. Nor was
the evidence found with the compelled assistance of any of the appellants.3

[27] Insofar as Rossouw’s role in the investigation is concerned, the evidence is
clear that every stage of his involvement was at the behest of Van Zyl. All of the
exhibits seized were handed to Van Zyl, who thereafter dealt with them in accordance
with standard police procedure. There has been no challenge on behalf of the
appellants either in this Court or the one below to the chain of custody of the various
exhibits. The suggestion appears to be that Mr Rossouw’s mere presence, without
more, tainted the investigation in some or other undisclosed manner, thereby resulting
in an unfair trial. That, merely has to be stated, to be rejected.

3 See generally Magwaza v S [2015] ZASCA 36; [2015] 2 All SA 280 (SCA); 2016 (1) SACR 53 (SCA)
and the cases there cited.

[28] It is so that 6 Van der Spuy Avenue was searched without a search warrant,
but by that stage the property was to all intents and purposes abandoned. In any event,
the search had been conducted with the permission of the letting agent, National Real
Estate. The searches in Kestell and Pietermaritzburg followed upon the arrest of
suspects and were conducted in terms of s 23 of the Criminal Procedure Act. In any
event, none of the appellants testified during the course of the trial within a trial. The
trial court was thus simply none the wiser as to whose privacy rights had been
infringed, the extent and scope of such infringement and whether or not, as a
consequence, it ought to exercise its discretion in favour of admitting such evidence.

[29] In S v Magwaza it was stated:
‘Although s 35(5) of the Constitution does not direct a court, as does s 24(2) of the [Canadian]
Charter, to consider ‘all the circumstances’ in determining whether the admission of evidence
will bring the administration of justice into disrepute, it appears to be logical that all relevant
circumstances should be considered (Pillay at 433h). Collins lists a number of factors to be
considered in the determination of whether the admission of evidence will bring the
administration of justice into disrepute, such as, for example: the kind of evidence that was
obtained; what constitutional right was infringed; was such infringement serious or merely of
a technical nature and would the evidence have been obtained in any event. In Collins (at
282), Lamer J reasoned that the concept of disrepute necessarily involves some element of
community views and ‘thus requires the Judge to refer to what he conceives to be the views
of the community at large’. Pillay (at 433d-e) accepted that whether the admission of evidence
will bring the administration of justice into disrepute requires a value judgment, which inevitably
involves considerations of the interests of the public.’4
So approached, no justification existed in this case for the exclusion of the evidence.
The result is that at the conclusion of the trial within a trial, a sizeable body of exhibits
came, quite correctly, to be admitted into evidence against the accused.

As to the second:
[30] During the course of the trial, some of the evidence relied upon by the
prosecution was sought to be excluded by the defence on account of its hearsay
nature, such as: (a) the evidence of Ms Saleem of her telephonic conversations with
her husband and Amanullah Nusrullam; (b) Ms Awan’s evidence of her conversations

4 Magwaza fn 3 above para 15.

with her husband; (c) six sworn statements by Rehman Khan, made to three different
police officers; and (d) the pointing out made by Rehman Khan to Captain Laux. The
trial court ruled them admissible in terms of s 3(1)(c) of the Law of Evidence
Amendment Act 45 of 1988 (the Law of Evidence Act).

[31] Hearsay evidence has historically been recognised to tend to be unreliable. It
has thus been said that a court should hesitate long in admitting or relying on hearsay
evidence, which plays a decisive or even significant part in convicting an accused
person, unless there are compelling justifications for doing so.5 Hearsay is defined, in
s 3(4) of the Law of Evidence Act, as statements either oral or written, whose probative
value depends upon the credibility of another independent person not testifying before
court. In Seemela v S, it was stated:
‘For many years our law knew a rigid exclusionary rule which allowed specific exceptions but
no relaxation. Now there is no exclusion as such. Hearsay evidence may now be accepted
subject to the broad, almost limitless criteria set out in s 3(1). Of that section, Schutz JA (s v
Ramavhale 1996 (1) SACR 639 (A) at 647d) had this to say:
“. . . it is necessary to emphasise . . . that s 3(1) is an exclusionary subsection and that the
touchstone of admissibility is the interest of justice, as is made clear by the words ‘. . . hearsay
evidence shall not be admitted as evidence . . . unless - . . . the court, having regard to (the
considerations in ss (c)) is of the opinion that such evidence should be admitted in the interests
of justice’”.’6

[32] The matters listed in s 3(1)(c) are: (i) the nature of the proceedings; (ii) the
nature of the evidence; (iii) the purpose for which the evidence is tendered; (iv) the
probative value of the evidence; (v) the reason why the evidence is not given by the
person upon whose credibility the probative value of such evidence depends; (vi) any
prejudice to a party which the admission of such evidence might entail; and (vii) any
other factor which should in the opinion of the court be taken into account. Insofar as
the evidence of Ms Saleem and Ms Awan are concerned, counsel accepted that their
‘evidence falls squarely within the ambit of s 3(1)(c)’ and that the ‘trial court gave a
lengthy judgment and considered each factor mentioned in section 3(1)(c) (i - vii)’.

5 Seemela v S [2015] ZASCA 41; 2016 (2) SACR 125 (SCA).
6 Ibid para 12.

[33] I may add that there is much in the other evidence that lends material support
to the evidence of the two of them. First, independently of the other, the evidence of
each establishes that: the four deceased were in the company of each other; their
whereabouts and the other persons in whose presence they found themselves.
Second, their evidence establishes that each of the deceased had cellphones with the
following numbers: Saleem Majid 0728731388; Amanullah Nusrullah 0820426282;
Shabodien Hussein 0737611411 and Malik Yasser 0827472516, which Ms Heyneke
of Vodacom testified was active in Clocolan at the relevant time. Third, Ms Saleem
identified her CD covers in a little shed behind the house at 42 Andries Pretorius Street
in Clocolan, the very property on which the bodies of the four deceased were ultimately
discovered. Fifth, Frank Opperman, who lived, and worked as a service provider of
computers and accessories in Clocolan, recognised accused 1 as the driver of a blue
BMW, which he identified from photographs taken after the vehicle had been
recovered, as the vehicle that Ms Saleem testified belonged to her, which had been
driven by her husband from Johannesburg to Clocolan. Support for this is also to be
found in the evidence of Steven Latela, who testified that one morning after 9
November 2007, accused 1 came to fetch him in a blue BMW. There is therefore
sufficient by way of safeguards in the evidence, if viewed holistically, that ought to
satisfy a trier of fact as to the reliability of the hearsay evidence tendered by each of
these witnesses.

[34] Turning to the evidence of Rehman Khan. I cannot agree with the trial court that
his various statements ought to have been admitted into evidence against the
accused. In this regard it is important to recognise why hearsay evidence is in general
inadmissible. A witness who testifies in open court does so under oath or affirmation
and so the potential liability for perjury operates as a natural deterrent against false
testimony. Also, the presence in court of the person against whom the evidence is
tendered encourages circumspection on the part of the witness. Because of the
adversarial nature of court proceedings, a person has the right to confront his or her
accuser and to test by cross-examination the veracity of the witness’s assertions. It
must be remembered that cross-examination is a potent tool in the truth-finding
exercise and discerning who is telling the truth is essential to the fact-finding role of
the court. The court’s ability to observe the demeanour of the witness contributes to a
more reliable assessment of credibility. When hearsay evidence is admitted these

important safeguards are lost. And so, historically the exclusion of hearsay evidence
has been considered necessary to guard against the danger that the trier of fact might
place undue weight on such evidence despite its inherent weaknesses.

[35] As Schutz JA observed in S v Ramavhale ‘[a]n accused person usually has
enough to contend with without expecting him also to engage in mortal combat with
the absent witness’.7 Hence, the intuitive reluctance on the part of our courts to permit
untested evidence to be used against an accused in a criminal case.8 In support of the
admission of Rashid Khan‘s statements, the prosecution argued that he had
repeatedly asked for protection and that he was not in attendance because he and his
family in Pakistan had been threatened by the accused or persons acting on their
behalf. Accordingly, so the argument went, because of the intimidation by or at the
hands of the accused, the witness had disappeared and was not present to testify.
Simply put, there is no factual foundation for that speculative and conjectural
hypothesis.

[36] That aside, in the trial court much store was placed on the judgment of this
Court in S v Ndhlovu,9 which had come to represent a seismic shift in our law inasmuch
as it jettisoned the common law rule that an extra-curial statement by an accused
person is inadmissible against a co-accused. However, the correctness of Ndhlovu
has since been reconsidered in S v Litako.10 The key findings in Litako were: the rule
against the admission of hearsay evidence developed because of the inherent
dangers of permitting the use of extra-curial statements by one accused against
another; such a statement has always been regarded as irrelevant insofar as a co-
accused is concerned; the reliability of such evidence can never ever be properly
tested, because an accused person cannot access the tools traditionally employed for
that very purpose; the rule appreciates that fair trial rights, including the right to fully
challenge the prosecution case, may be hampered; and, consequently the right to
challenge evidence enshrined in s 35(3)(i) of the Constitution may thereby be rendered
nugatory.

7 S v Ramavhale 1996 (1) SACR 639 (A) at 648A.
8 Metadad v National Employers’ General Insurance Co Ltd 1992 (1) SA 494 (W).
9 S v Ndhlovu and Others 2002 (2) SACR 325 (SCA).
10 Litako & Others v S [2014] ZASCA 54; 2014 (2) SACR 431 (SCA); [2014] 3 All SA 138 (SCA); 2015
(3) SA 287 (SCA).

[37] In Mhlongo v S; Nkosi v S,11 the Constitutional Court affirmed the correctness
of Litako. Although Litako, like Ndhlovu, was concerned with extra-curial statements
of co-accused persons and in particular the admissibility of an extra-curial statement
by a non-testifying co-accused, the considerations that weighed in Litako must no
doubt equally apply to a witness in the position of Rehman Khan.

[38] Unlike his extra-curial statements, however, the pointing out by Rehman Khan,
stands on a different footing. The pointing out to Captain Laux on 4 December 2008
led to the discovery of the bodies of the four deceased in counts 10 to 13. In this
regard, as earlier, the importance of the distinction between real and testimonial
evidence looms large. Thus, whilst I have had no regard in my summation of the
evidence to the content of each of Rehman Khan’s extra-curial statements, including
his statements during the course of the pointing out, as recorded by Captain Laux, the
fact of the discovery of the four bodies at 42 Andries Pretorius Street, cannot be left
out of the reckoning.

As to the third:
[39] It is contended that the trial court erred in finding that Latela, Ahmed, Rossouw
and Van Zyl were credible and reliable witnesses. It may be convenient to commence
with the last two. As far as they are concerned, considerations of credibility and, even
for that matter reliability, hardly arise. I have already alluded to the importance of the
distinction between real and testimonial evidence. As should be apparent from the
evidence already summarised, the evidence of each related, in the main, to the former.
Aside from the challenge to the admissibility of such evidence (which as I have shown
is untenable), the fact of the existence or reliability of that evidence was not sought to
be impugned in any way. It must thus follow that as far as Van Zyl and Rossouw are
concerned, credibility can therefore hardly feature in the equation and must recede
into the background.

[40] Mr Steven Latela testified in relation to count 1, as well as 5, 6, 7 and 8; the last
four of which were not persisted with by the prosecution. The relevance of Latela’s
evidence is thus restricted to count 1. I have not recounted his version, because having

11 Mhlongo v S; Nkosi v S [2015] ZACC 19; 2015 (2) SACR 323 (CC); 2015 (8) BCLR 887 (CC).

been warned in terms of s 204 of the Criminal Procedure Act, his evidence falls to be
treated with caution and where it stands alone, I have chosen rather not to place any
reliance upon it. He stated, which was confirmed by accused 1, when the latter
testified, that in 2006 he had been working part-time at a shop in Clocolan belonging
to a Mr Ghani, who had leased 42 Andries Pretorius Street to Mr Ejaz Basra (also
known as Ejaz Zodah). When Basra left, apparently because his wife was going to be
having a baby, accused 1 remained at the house. Over time accused 1 came to be
joined by the other accused.

[41] That accords with the version of accused 2. He stated that he used to go to 42
Andries Pretorius Street to visit his friend Basra in 2007. As he put it, he used to stay
there ‘sometimes two weeks, sometimes four weeks or sometimes three weeks’. After
what appeared to have been a quarrel of some kind accused 4, 5 and 7 moved to the
A-frame house. Later they were joined by Rehman Khan. Accused 2 and 6 remained
at 42 Andries Pretorius Street, whilst accused 1 seemed to move between the two
houses. Although accused 1 was of the view that some of the other accused were
there to a far lesser extent than testified to by Latela, it ultimately came to be
undisputed that each of the accused had more than just a passing acquaintance with
each other as well as 42 Andries Pretorius Street during 2006 and 2007. Latela, who
was then still a scholar, was a daily visitor and had a fairly intimate knowledge of the
goings on at both 42 Andries Pretorius Street and the A-frame house, so much so that
he was entrusted with the key to the latter. That is how he was able to grant access to
Ms Saleem, Ms Awan and the police, when they called on the second occasion.

[42] That leaves Mr Ifthkar Ahmed: his version finds material corroboration in the
other evidence adduced by the prosecution. First, it is not in dispute that both accused
1 and 2 had contact with Ahmed. Both admitted to having spoken to him although each
denied having shared any information about their involvement in the commission of
any of the offences. Second, both the blue BMW and black Corsa bakkie were indeed
recovered in Maseru, Lesotho. They were then in the possession of a person named
Lephoi Makara. Ms Saleem identified the BMW, once recovered, as hers. The Corsa
Bakkie that was recovered from Makara was positively identified as Zia Khan’s.

[43] Third, when asked in the course of his testimony if Malik Yasser was ‘a popular
guy and a gangster’, accused 6 replied: ‘the whole community knows that he was a
gangster’. He added that the people were scared of Malik Yasser and Saleem Majid.
He said: ‘they used to bring guys from overseas, human trafficking’. His evidence then
ran thus:
‘If you say that he was involved in human trafficking, one of the ways of human trafficking is
you get people illegally to a country and then you provide them with documentation, although
they’re not supposed to be here. That’s one of the ways of human trafficking? . . . Yes. I also
came with the very same way.
. . .
And who arranged that for you? . . . Rajah Novazish
And Basra? . . . I met him after that.
. . .
But you do agree that’s one way of human trafficking. Getting people here, get them false
documentation? . . . Yes
And there’s a lot of money involved in that. Isn’t it? The people who want to be illegally in the
country, they pay for the people in order to provide them with either a place to stay, protection
not to be caught by immigration and to get the documentation, illegal? . . . Yes. I agree on it.
And is it also so that there are quite a lot of groups who arrange this human trafficking in South
Africa? . . . Yes, I know some of the people they are doing this business.’

[44] Accused 6 added:
‘M’lord, when I came in 2003, I heard from the community that Majid Saleem, they kill one
woman and a girl. That’s why they in jail.’
This finds support in the evidence of Ms Saleem. She confirmed that her husband and
Amanullah Nusrullam had been arrested by the police in 2003 in connection with the
murder of a woman and her daughter, both of whom were Pakistani nationals. She
testified that in the ensuing trial they were found not guilty. In evidence, she was asked
by counsel for the accused whether she was aware of ‘the principle of an eye for an
eye’.

[45] The relevance of this last exchange is illustrated in the following from the
record:
‘Did Basra at any stage talk to you about these killings? . . . No. Basra never told me.

And did accused number 1, 2, 3, 4, 5 and 7 at any stage talk about these killings of Basra’s
friends? . . . No
So, as far as you are concerned, those two persons who were killed, that’s got nothing to do
with this case? . . . I have no knowledge about that.
. . .
Let me try to make it more easy for you. You didn’t talk to your attorney, to Mr Potgieter your
advocate about the fact that Basra’s friends were killed? . . . I didn’t speak anything to my
lawyer. But I did explain [to] him that Majid and Yasser Awan was gangsters.
That’s all what you said? . . . Yes.
And as far as you know, not one of your co-accused told Mr Potgieter about the fact that
Basra’s friends were killed allegedly by Malik Yasser and Majid Saleem? . . . I’m not sure about
it.
Because if you didn’t tell him anything and if the rest of the accused who testified also denied
that, I’d just like to know if you can assist us . . . why did he put to Zainub Saleem, the wife of
Majid that there is a religious principle of an eye for an eye? . . . M’lord, I can say only about
myself. I’m not sure about the other people what they are saying. But I am sitting here. I said
nothing about that’.
The quoted excerpts whilst accused 6 was being cross-examined lend weighty support
to Ahmed’s version that he was told by accused 2 that the killing of the four deceased
was gang-related. What was put by counsel to Ms Saleem is also telling. It accords
with the foundational hypothesis sought to be advanced by the prosecution.

[46] Fourth, the police did indeed find the bodies of the ‘four guys from
Johannesburg’ (as they were described) in Clocolan in the Free State. On that score,
the key post mortem findings of Dr Robert Book, a specialist forensic pathologist, who
examined the four, was that: they had been bound; had tape wrapped around their
mouths; each had been shot in the back of the head; and, their bodies had been buried
and were in an advanced state of decomposition. The discovery of the various different
passports and execution style killing of the four deceased lends credence to the
assertion of involvement in human trafficking and gang-related activity.

[47] Fifth, Rashid Khan did testify that after Zia Khan had been kidnapped he was
contacted with a ransom demand of R2 million. In that he supports Ahmed’s version
that he was told by accused 2 that the killing of Zia Khan was ‘for money’. Finally, it
must be asked, where else, if not from accused 1 and 2, would Ahmed have obtained

such information, which is entirely consistent with all the other proved facts. He could
hardly have conjured up that information and, what is more, it would take tremendous
guile and ingenuity for him to have pieced together such a coherent account. But even,
were it to have been possible for him to have pieced his version together, where would
he have derived the information from? In short, his version has a ring of truth to it. If
he did derive his information from accused 1 and 2, as it seems that he must have,
then the more important question becomes, how would accused 1 and 2 have been
privy to such details, unless they were intimately involved in the events described?

[48] Thus aside from Rehman Khan’s extra-curial statements and to a lesser extent
Latela’s testimony, where it stood alone, no warrant exists for the exclusion of any of
the other evidence adduced by the prosecution. It bears noting, however, that the
exclusion of such evidence does not materially detract from the cogency of the
prosecution case. Nor, for that matter, does the evidence of the accused, to which I
now turn.

[49] Importantly, it came to be formally admitted that: (i) cellphone number
0790822420 was used by accused 5 from time to time and cellphone number
0714903366 was also his number; (ii) cellphone numbers 0728776633 and
0711659933 were accused 1’s numbers; and (iii) the correctness of the cellphone data
was not in dispute. As shall be demonstrated, the effect of these formal admissions,
particularly that relating to the cellphone data, cannot be overstated.

[50] Accused 1, 2, 3, 5 and 6 testified. The other two did not, nor did they call any
evidence in their defence. Accused 1 testified that during August 2006 to July – August
2007 he often stayed at the house in Andries Pretorius Street in Clocolan and that
after Basra left he paid the rent. In July or August 2007, he rented the A-frame house
although accused 5 paid the rent for it. In this regard he was unable to explain why it
was put to Latela that accused 5 in fact stayed in Mpumulanga, where he had a shop.
Accused 1 stated that whilst he did fetch Latela in a blue BMW, it was not the same
vehicle as that identified by Ms Saleem. Although he had met her husband fleetingly
only once in Johannesburg, he was unable to explain her evidence that her husband
had used her cellphone to call a number on 5 November 2007, which came to be

admitted as his number. Importantly, her evidence in this regard was not disputed
when she testified.

[51] It is not in dispute that accused 1 visited 6 Van Der Spuy Avenue on 4 March
2008. This according to him was the first time that he visited there, which co-
incidentally was the very day that Zia Khan went missing. It was also the place where
his body was eventually found. It will be recalled that the day before, namely 3 March
2008, accused 2 and 6 left Zia Khan’s house, having spent the night there, together
with him in his Corsa bakkie. According to the cellphone data evidence, from 20 March
to 9 April 2008, accused 1 was using Zia Khan’s handset, with number 07111659933.
That was also the contact number reflected on the register for the Howick Falls Hotel,
where Ms Alma Dixon saw accused 1 with the black Corsa bakkie. Inside the Corsa
bakkie, when it was ultimately recovered from Makara in Lesotho, were the original
passports of accused 6 and Rehman Khan. Accused 1 admitted to having called
Rashid Khan in Pakistan, however, it was not to threaten him, but as he put it
‘[b]ecause I want to know from him why I am in prison’. This despite the fact that he
knew that Rashid was a prosecution witness, with whom he ought not to have had any
contact. Accused 1 also admitted that he was the owner of the book seized from the
Opel Astra in Kestell containing the names and numbers of his contacts. The entry
‘Farhan 0763820594’, so he stated, was a reference to accused 5. That, it bears
repeating, was the number on one of the starter packs found by Rossouw at 6 Van
Der Spuy.

[52] When accused 3 testified, he admitted that it was his name on the lease
agreement and that he had in fact concluded the lease agreement in respect of 6 Van
Der Spuy Avenue. He said that he was initially asked by one Rajah to lease a property
for him in Bloemfontein, but refused. Thereafter he was asked by Basra, who is his
first cousin, and he agreed. Although he signed the lease agreement, ‘they took
responsibility to do everything, the rest’ including, so he states, the payment of the
rent. Accused 5 testified that he came to 42 Andries Pretorius Street in Clocolan in
about June 2007 to see his relative, accused 1. He lived there until ‘about the end of
July or first week of August and then we rent our own house’. Accused 5 also admitted
that the envelope found at Harvard Street in Pietermaritzburg was addressed to him
and bore his cellphone number 0790822420.

[53] Saleem Majid last spoke to his wife on 9 November 2007. Thereafter she was
unable to contact him telephonically. The evidence pertaining to the cellphone data
established that accused 1’s SIM card with number 0728776633 was used in Saleem
Majid’s handset with number 0728731388 in the period 9 November to 11 November
2007. That handset was then not active until 30 December 2007, when from 12:07 on
that day until 13:12 on 8 March 2008 it was used with accused 5’s SIM card bearing
number 0790872420. In that period a total of 270 calls were made, 263 of which were
successful.

[54] Accused 5’s other number, 0763693123, came to be used in Saleem Majid’s
handset during the period 30 December 2007 to 9 January 2008; in which time 13
successful calls were made on that SIM card. Accused 5’s number 0790872420 was
also used in the handset of the deceased, Shabodien Hussein, from 1 to 4 January
2008. In that period 111 successful calls were made. The number 0797928808, which
was reflected on the contact list of the Vodaphone 125 phone found on accused 5 at
Kestlell next to the name Shabber, was also used in Shabodien Hussein’s handset in
the period 30 December 2007 to 3 January 2008. Some 50 successful calls were made
on that number using that handset in that period. That SIM card was also used in
Saleem Majid’s handset in the period 1 January to 4 March 2008.

[55] As should be apparent, I have restricted my analysis to the evidence that is, by
and large, either common cause or undisputed. The overall picture that emerges when
the different pieces are stitched together and the seemingly disparate threads
tightened is pretty damning. To borrow from Davis AJA n R v De Villiers:
‘As stated by Best, Evidence (5th ed. sec 298): -
“Not to speak of greater numbers; even two articles of circumstantial evidence – though each taken by
itself weigh but as a feather – join them together, you will find them pressing on the delinquent with the
weight of a milestone. It is of the utmost importance to bear in mind that, where a number of independent
circumstances point to the same conclusion the probability of the justness of that conclusion is not the
sum of the simple probabilities of those circumstances, but is the compound result of them.”’12
Indeed, as stated in S v Reddy:
‘In assessing circumstantial evidence one needs to be careful not to approach such evidence
upon a piece-meal basis and to subject each individual piece of evidence to a consideration

12 R v De Villiers 1944 AD 493 at 508.

of whether it excludes the reasonable possibility that the explanation given by an accused is
true. The evidence needs to be considered in its totality.’13

[56] Accordingly, little value would be served in traversing the evidence of each of
the accused in any greater detail. For the most part, the attempt to distance
themselves from each other, 42 Andries Pretorius Street and 4 Van Der Spuy Avenue
and the incriminating exhibits, bordered on the ridiculous. So too, the disavowal of
what was put by counsel on their behalf to the different prosecution witnesses, as well
as the feigned ignorance or contrived explanations for the various seized exhibits and
the movement of their cellphone handsets and SIM cards as testified to by Ms
Heyneke. As Nugent J pointed out in S v Van der Meyden:
‘Evidence which incriminates the accused, and evidence which exculpates him, cannot both
be true – there is not even a possibility that both might be true – the one is possibly true only
if there is an equivalent possibility that the other is untrue. There will be cases where the State
evidence is so convincing and conclusive as to exclude the reasonable possibility that the
accused might be innocent, no matter that his evidence might suggest the contrary when
viewed in isolation.’14

[57] Nor is it necessary for me to deal with the individual role played by each of the
accused, because as Moseneke J observed in S v Thebus in summing up the
requirements for common purpose liability: ‘[t]he liability arises from an active
association and participation in a common criminal design with the requisite
blameworthy state of mind’.15 Here not only does the evidence show a clear
association between the accused to each other, but also links each of them by means
of several different pieces of evidence to all five deceased and the two properties
where their bodies were buried.

[58] It follows that the points raised on appeal, when viewed either individually or
collectively, can hardly tip the scales in favour of the accused, meaning that the appeal
must fail.

13 S v Reddy and Others 1996 (2) SACR 1 (A) at 8-9.
14 S v Van der Meyden 1999 (2) SA 79 (W) at 81F–G.
15 Thebus and Another v S [2003] ZACC 12; 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC) para
19.

[59] In the result, the appeal is dismissed.

________________

VM PONNAN

JUDGE OF APPEAL

_________________________

MV PHATSHOANE

ACTING JUDGE OF APPEAL

Appearances:

For appellants:

J Nel SC with J Potgieter
Instructed by:

Jacobs Fourie Inc, Bloemfontein

For respondent:

A Simpson

Instructed by:

Director of Public Prosecutions, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

22 AUGUST 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal

Qurashi and Others v The State (Case no 1166/2018) [2022] ZASCA 188 (22 August 2022)

Today the Supreme Court of Appeal (SCA) handed down a judgment dismissing the appeal against the
decision of the Free State Division of the High Court of South Africa, Bloemfontein (the high court).

The first, second and third appellants, Saleem Qurashi, Farhan Ullah and Shabber Ghulam (hereinafter
referred to as ‘the accused’), stood trial as accused 2, 5 and 6 respectively, together with four others,
all Pakistani nationals before the high court. The accused had to answer to 11 counts, namely: the
contravention of s 9(1)(a) of the Prevention of Organised Crime Act 121 of 1998 (POCA) (count 1); two
counts of robbery with aggravating circumstances (counts 9 and 16); five counts of murder (counts 10,
11, 12, 13 and 17); kidnapping (count 14); attempted extortion (count 15); and, a contravention of s
18(2)(a) of the Riotous Assemblies Act 17 of 1956, being a conspiracy to commit kidnapping (count 18)
- a charge that was not preferred against the third appellant.

Count 1 relates to the alleged participation of the accused in organised criminal gang activity in
contravention of s 9 of POCA. As part of a pattern of such activity, the State contended in the high court
that the accused either individually or collectively committed the various offences set out in the
indictment. The prosecution alleged that in November 2007, the four deceased in counts 10 to 13, Malik
Yasser Awan, Amanullah Nusrullam, Shabodien Hussein and Majid Saleem, who were also Pakistani
nationals, were lured to Clocolan, Free State, by the accused, where they were robbed of a BMW sedan
motor vehicle, four Nokia cell phones and two firearms (count 9). They were then murdered and buried
in a shallow grave (counts 10, 11, 12 and 13) at a property known as 42 Andries Pretorius Street,
Clocolan.

On 4 March 2008, the accused allegedly kidnapped Mr Zia Khan and deprived him of his liberty at 6
Van der Spuy Avenue, in Bloemfontein (count 14). They then threatened to kill Mr Zia Khan unless his
relative, Mr Rashid Khan, paid them R2 million (count 15). Mr Zia Khan was also robbed of his Opel
Corsa bakkie and a cell phone (count 16). Following the killing of Zia Khan (count 17), he was buried in
a shallow grave at 6 Van der Spuy Avenue, Estoire, Bloemfontein. The State further alleged that
accused 1, 2 and 5 conspired with Mr Ifthkar Ahmed to kidnap Mr Rashid Khan (count 18). Save for
count 17, on which the accused were convicted of culpable homicide instead of murder, the accused
were convicted as charged and each sentenced to imprisonment for life.

The issues before the SCA concerned: first, the admission of evidence, which, the accused contended,
was obtained unconstitutionally and infringed their right to privacy and to a fair trial; second, the
admission of hearsay evidence and the prominent role it played in their conviction; and, third, the
credibility findings made by the high court in favour of the prosecution witnesses against the accused.

At to the first, it was contended for the accused that the search of the premises and seizure of exhibits
at 6 Van der Spuy Avenue in Bloemfontein violated the accused right to privacy. So too, the search of
their persons, vehicles and houses upon their arrest.

The SCA held that the starting point must be an appreciation that a notable feature of the Constitution’s
specific exclusionary provision (s 35(5)) is that it does not provide for the automatic exclusion of
unconstitutionally obtained evidence. Evidence must be excluded only if it (a) renders the trial unfair;
or (b) is otherwise detrimental to the administration of justice. As no evidence was adduced on that
score on behalf of the accused, the high court was simply unable to make that assessment.

The SCA found that although the search at 6 Van der Spuy Avenue was without a search warrant, the
property was for all intents and purposes abandoned. The search had been conducted with the
permission of the letting agent. Furthermore, it held that the searches in Kestell and Pietermaritzburg
followed upon the arrest of suspects and were conducted in terms of s 23 of the Criminal Procedure
Act 51 of 1977 (the CPA). Lastly, the SCA held that as none of the accused testified during the trial
within a trial, the high court was simply none the wiser as to whose privacy rights had been infringed,
the extent and scope of such infringement and whether or not, as a consequence, it ought to exercise
its discretion in favour of admitting such evidence. So approached, the SCA held, no justification existed
for the exclusion of the evidence.

As to the second, during the course of the trial, some of the evidence relied upon by the prosecution
was sought to be excluded by the defence on account of its hearsay nature. The high court ruled them
admissible in terms of s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 (the Law of Evidence
Act).

The SCA considered the principles applicable. In respect of the evidence of Ms Saleem and Ms Awan,
with regard to the telephonic conversations they had with their husbands immediately prior to being
reported missing, the SCA held that there were sufficient safeguards in the evidence, if viewed
holistically, which ought to have satisfied a trier of fact as to the reliability of the hearsay evidence
tendered by each of the witnesses.

Furthermore, the SCA held that the various statements attributed to Mr Rehman Khan, who did not
testify, ought not to have been admitted into evidence against the accused. This was so, because a
witness who testifies in open court does so under oath or affirmation and so the potential liability for
perjury operates as a natural deterrent against false testimony. Also, the presence in court of the person
against whom the evidence is tendered encourages circumspection on the part of the witness. Because
of the adversarial nature of court proceedings, a person has the right to confront his or her accuser and
to test, by cross-examination, the veracity of the witness’s assertions.

The SCA further held that, unlike Mr Rehman Khan’s extra-curial statements, the pointing out made by
him stood on a different footing. It led to the discovery of the bodies of the four deceased in counts 10
to 13, which could not have been left out of the reckoning.

As to the third, it was contended that the high court erred in finding that Latela, Ahmed, Rossouw and
Van Zyl were credible and reliable witnesses. In respect of the credibility findings made by the high
court in favour Mr Rossouw and W/O Van Zyl, the evidence of each related to real evidence. Aside from
the challenge to the admissibility of such evidence, which the SCA found to be untenable, the fact of
the existence or reliability of that evidence was not sought to be impugned in any way. Their credibility
could hardly have featured and receded into the background.

As to those made in favour of Mr Latela, the SCA found that the relevance of his evidence was restricted
to count 1, the alleged participation of the accused in the organised criminal gang activity. The court
held that Mr Latela had been warned in terms of s 204 of the CPA and thus his evidence had to be
treated with caution where it stood alone. His evidence found corroboration in that it ultimately came to
be undisputed that each of the accused had more than just a passing acquaintance with each other as
well as 42 Andries Pretorius Street during 2006 and 2007.

As regards Mr Ifthkar Ahmed’s version, the SCA found material corroboration in the other evidence
adduced by the prosecution as detailed in the judgment. More importantly, the evidence adduced
through cross-examination of accused 6 provided weighty support to Mr Ahmed’s version that he was

told by accused 2 that the killing of the four deceased was gang related. Furthermore, he was told by
accused 1 of their involvement in the criminal activities. The SCA found, that Mr Ahmed could hardly
have conjured up that information as it would take tremendous guile and ingenuity for him to have
pieced together such a coherent account.

Regarding the evidence of each of accused’s version, the SCA held that little value would be served in
traversing the evidence of each of them in any greater detail. Not only did the evidence show a clear
association between the accused to each other, but also links each of them by means of several
different pieces of evidence to all five deceased and the two properties where their bodies were buried.

The SCA held that the points raised on appeal, when viewed either individually or collectively, could
hardly tip the scales in favour of the accused.

~~~~ends~~~~