THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 465/2019
In the matter between:

RAJIVEE SONI
APPELLANT

and

THE STATE
RESPONDENT

Neutral citation:
Rajivee Soni v The State (Case no 465/2019) [2021]

ZASCA 57 (5 May 2021)
Coram:
NAVSA ADP, SALDULKER and MBHA JJA and WEINER and

UNTERHALTER AJJA
Heard:
29 March 2021
Delivered:
This judgment was handed down electronically by circulation to
the parties’ representatives by email, publication on the Supreme Court of
Appeal website and release to SAFLII. The date and time for hand-down is
deemed to be 10h00 on 5 May 2021.
Summary: Criminal appeal – appeal against conviction and sentence –
whether pattern of evidence proved guilt of the accused beyond a reasonable
doubt – distinction drawn between a mandate and the doctrine of common
purpose in respect of a charge of murder – test to be applied when a State
witness cannot testify and where cross-examination cannot be completed –
sentence – whether period of incarceration awaiting appeal ought to be taken
into account.

ORDER

On appeal from: KwaZulu-Natal Division of the High Court, Pietermaritzburg
(Henriques J, sitting as the court of first instance):

1.
The appeal against convictions and sentences is upheld in part and
dismissed in part, as follows:
1.1 The appeal against the conviction and sentence on count 1 is dismissed;
1.2 The appeal against the convictions and sentences on counts 2 and 4 is
dismissed;
1.3 The appeal against the convictions and sentences on counts 3 and 5 is
upheld;
1.4 The appeal against the conviction on count 6 of conspiracy to murder is
upheld, with the conviction substituted with the alternative count, namely,
incitement to commit murder;
1.5 The appeal against sentence on count 6 is upheld to the extent reflected
in the substituted order that appears hereunder;
1.6 The effective sentence is reduced to the extent reflected in the substituted
order.
2.
The order of the court below is substituted as follows:
‘(a) In respect of count 1: Murder read with s 51(1) and Part 1 of Schedule 2
of the Criminal Law Amendment Act 105 of 1997, the accused is found guilty;
(b)  In respect of count 2: Defeating or obstructing the course of justice, the
accused is found guilty;
(c)  In respect of count 3: Defeating or obstructing the course of justice, the
accused is acquitted;
(d)  In respect of count 4: Defeating or obstructing the course of justice, the
accused is found guilty;
(e)  In respect of count 5: Assault with intent to do grievous bodily harm, the
accused is acquitted;
(f)
In respect of count 6: Conspiracy to commit murder, alternatively,
incitement to murder, the accused is found guilty of incitement to murder;
(g)  In respect of count 1, the accused is sentenced to 25 years’ imprisonment;

(h)  In respect of count 2, the accused is sentenced to 18 months’
imprisonment;
(i)
In respect of count 4, the accused is sentenced to 2 years’ imprisonment;
(j)
In respect of count 6, the accused is sentenced to 5 years’ imprisonment;
(k)  The sentences imposed on counts 2, 4 and 6 are to run concurrently with
the sentence on count 1. The accused is sentenced to an effective 23 years’
and 7 months’ imprisonment.’
3.
The sentence of 23 years and 7 months’ imprisonment referred to in (k)
above will run from the date of the further imprisonment of the appellant
pursuant to this order.
4.
The National Commissioner for Correctional Services is directed to ensure
that a social worker in the employ of the Department for Correctional Services
visits the children of the accused, Mr Soni, regularly during his incarceration,
and submits reports to the office of the National Commissioner as to whether
the children are in need of care and protection as envisaged in section 150 of
the Children’s Act 38 of 2005 and, if so, to take the steps required by that
provision.
5.
The Department of Correctional Services is to give consideration to the
recommendation in the report of Floss Mitchell relating to the manner in which
contact visits between the accused and the minor children are to take place,
and, where possible, to facilitate the assistance of a social worker during such
visits.
6.
The accused is declared unfit to be licenced for a firearm in terms of the
provisions of the Firearms Control Act 60 of 2000.

JUDGMENT

Saldulker JA and Unterhalter AJA (Navsa ADP and Mbha JJA and Weiner
AJA concurring)

Introduction
[1] On the night of 13 May 2013, at around 19h00, when Dr Bhavish
Sewram (the deceased), a medical doctor, left his surgery in Raisethorpe,

Pietermaritzburg little did he know that he was to meet an untimely death at the
hands of assassins hired to execute him. Mr Sabelo Dlamini, who fired the shots
that killed him, and those who waited in the getaway vehicle to drive him away,
were arrested, convicted and sentenced for his murder. One would think that
Dr Sewram’s family had closure, in that those responsible for his death were
held to account and had paid for their dastardly deed. But this was not to be.

[2] This was only the beginning of a saga which led to revelations of
corruption, conspiracies, incitement, defeating the course of justice, and the
laying of false charges, all of which eventually culminated in the arrest of a
businessman, the appellant, Mr Rajivee Soni, for the murder of Dr Sewram.

[3] The appellant was arrested and charged with six counts, namely, on
count 1, the murder of Dr Sewram; on counts 2, 3, and 4, for defeating or
obstructing the course of justice; on count 5, for assault with intent to cause
grievous bodily harm; and on count 6, for contravening s 18(2)(a) of the Riotous
Assemblies Act 17 of 1956 (conspiracy to commit murder).

[4] It was a lengthy trial that lasted in excess of three years. The appellant
was convicted on all charges by the KwaZulu-Natal Division of the High Court,
Pietermaritzburg (Henriques J) (the high court), and sentenced to imprisonment
as follows: 25 years on the murder count; 18 months, on counts 2 and 3, for
defeating the course of justice; 2 years on count 4, defeating the course of
justice; 18 months for the assault on count 5; and, on count 6, to five years for
conspiracy to commit murder. The sentences on counts 2 to 5 were ordered to
run concurrently with the sentence on count 1. The appellant was sentenced to
an effective 30 years’ imprisonment. This appeal against the conviction and
sentence of the appellant is with the leave of the high court.

Background
[5] Dr Sewram, who was 33 years old at the time of his death, was a doctor
who conducted a number of practices, one of which was located at Old
Greytown Road, Raisethorpe in Pietermaritzburg, KwaZulu-Natal. The
appellant and Dr Sewram enjoyed a friendship for several years and their wives

were also friends. However, during January 2012 their friendship soured, after
the appellant formed a suspicion that Dr Sewram was engaged in an extra-
marital affair with the appellant’s wife.

[6] At the commencement of the proceedings in the high court the appellant
tendered a plea of not guilty on all 6 counts and a statement in terms of s 115
of the Criminal Procedure Act 51 of 1977 (the CPA) was handed in on his
behalf, in which he denied any involvement in the murder or in any of the
offences with which he had been charged. The appellant stated that at a family
meeting he and the deceased had reconciled and that over time he had made
peace with his wife.

[7] The State’s principal witness was Mr Sugen Naidoo, who, at the time of
the murder, was a policeman serving at the Mountain Rise police station in
Pietermaritzburg. He testified that in 2012 the appellant had visited him and in
due course recounted that his wife had been having an affair with his friend,
Dr Sewram. The appellant wanted to teach Dr Sewram a lesson and was willing
to pay for this to be done. Sugen Naidoo, a self-confessed drug addict and
corrupt policeman, was willing to assist the appellant and make some money
at the appellant’s expense.

[8] Sugen Naidoo’s evidence was that he and the appellant planned various
actions to be taken against Dr Sewram so as to harm him, and ultimately cause
him to leave Pietermaritzburg. Over the course of 2012, Sugen Naidoo lent his
efforts, together with the appellant, to this enterprise. First, Sugen Naidoo
approached a fellow policeman, Warrant Officer Daryl Gounder, to assist him
to plant drugs at Dr Sewram’s surgery and then have the doctor arrested for
illegal drug possession. Sugen Naidoo purchased the drugs with money given
to him by the appellant from his brother-in-law, Mr Hoosen Shaik-Cassim.
Sugen Naidoo however informed the appellant that the plan to plant the drugs
had been thwarted by senior officers, and he was nevertheless paid by the
appellant.

[9] Undeterred, the appellant then conceived of a plan to have Dr Sewram
charged with sexual assault and sought Sugen Naidoo’s assistance. Sugen
Naidoo, in turn, asked Gounder to arrange that a woman would consult with
Dr Sewram and then lay a false charge of sexual assault against the doctor.
This, Gounder did by persuading Ms Mariamma Kisten to consult with Dr
Sewram and then lay a charge of sexual assault against him. Dr Sewram was
arrested and charged. But the charge was later withdrawn.

[10] The appellant then sought to escalate the actions against Dr Sewram,
and wanted him physically hurt. The appellant asked Sugen Naidoo whether
his brother-in-law, Mr Morné Emersleben, would be willing to do so. Sugen
Naidoo approached Emersleben and they contrived a plan to plant an
unlicensed firearm at Dr Sewram’s surgery, and later, to hire men to assault Dr
Sewram. In fact, they intended to carry out neither plan and used the appellant’s
connivance in these plans to extract money from him.

[11] Next, the appellant came to Sugen Naidoo with a plan to lay a false
complaint of assault against Dr Sewram that would be corroborated by a friend
of the appellant. The appellant did make the complaint. A docket was opened
by Sugen Naidoo, and Dr Sewram was arrested and released on a warning.
The appellant paid Sugen Naidoo for his efforts.

[12] Sugen Naidoo then made contact with Mr Zaheer Khan, at the instance
of the appellant, to have Dr Sewram assaulted against payment of R5 000. The
assault did not take place, but a different plan was agreed with Khan. His step-
daughter, Ms Sonali Sookraj, would consult with Dr Sewram and then lay a
false charge of sexual assault against him. This she did. Dr Sewram was again
arrested and charged, but the charge was also withdrawn.

[13] Finally, Sugen Naidoo also testified that he had introduced the appellant
to two policemen, Mr Ricky Naidoo and Mr Nishal Maharaj. They conceived of
a plan to spray-paint ‘sex pest’ and ‘sex doctor’ at Dr Sewram’s surgery. This
was then done. Emboldened, the appellant then conspired with the two
policemen to have them shoot Dr Sewram with a paintball gun, discharging hard

objects. The appellant, Sugen Naidoo, Ricky Naidoo, and Maharaj set off on an
expedition to buy a paintball gun. This they eventually procured in Pinetown.
Ricky Naidoo and Maharaj carried out the assault upon Dr Sewram, who was
injured as a result. And the appellant paid them for their efforts.

[14] We have set out this sequence of events, to which Sugen Naidoo
testified, because they are central to the case that the State made against the
appellant. The State led the following witnesses to corroborate the account
given by Sugen Naidoo. First, Emersleben testified that the appellant had asked
him to procure assailants to assault Dr Sewram. He had done so, but the
assault did not take place, because the hired assailants had taken the money
for the task and fled. The appellant also wanted Emersleben to procure an
unlicensed firearm. He agreed to do so, but in fact did not. Second, Shaik-
Cassim testified that the appellant had paid him to hire men to break
Dr Sewram’s arms and legs and had described Dr Sewram’s surgery. Shaik-
Cassim testified that he had no intention of carrying out the appellant’s request
and appeared to acquiesce only in order to extract money from the appellant.
Third, the State called Mariamma Kisten and Sonali Sookraj, the two women
who had laid the false complaints of sexual assault. They testified as to how
they had come to do so. Sookraj explained that her step-father had asked her
to lay the charge and had thereafter climbed into a white double-cab vehicle, in
which she identified the appellant seated in the front of the vehicle. It is
necessary to pause to record that the appellant owned a white double-cab
vehicle. This part of the evidence is explored further, later in this judgment.

[15] The State also called two further witnesses of importance. The first was
Mr Mlungisi Sithebe. Sithebe testified that the appellant had asked him to scare
Dr Sewram by shooting him in the leg. The appellant wanted this done because
Dr Sewram had had an affair with the appellant’s wife. The appellant drove
Sithebe to show him Dr Sewram’s surgeries. Sithebe entertained the proposal,
but ultimately decided that it was against his religious convictions. He then
reported the matter to Dr Sewram and the police.

[16] The other witness called by the State was Sabelo Dlamini. He, together
with Mr Mfaniseni Nxumalo and Mr Brian Treasurer, were convicted of the
murder of Dr Sewram. Dlamini testified that Nxumalo had persuaded him to
shoot a man who had failed to pay Nxumalo for cutting his grass. Dlamini was
driven to Dr Sewram’s surgery by Treasurer and given a firearm. Treasurer
explained who was to be murdered. When Dr Sewram came out of his surgery,
Dlamini shot and killed him. Treasurer then drove him and Nxumalo away.
Treasurer placed a call in the course of the journey and said that the job had
been done.

[17] These were the principal witnesses called by the State.

[18] The appellant testified in his own defence. He explained how he came
to suspect that his wife was having an affair with Dr Sewram. This led to a
separation from his wife and the initiation of divorce proceedings. There was
also a heated exchange between the families of the appellant and Dr Sewram
at a meeting held after the appellant had discovered the suspected affair. But,
as to the alleged campaign against Dr Sewram, he denied any involvement.
Nor was he in any way involved in the murder of Dr Sewram. In February 2012,
he reported that an incident had occurred in which Dr Sewram had slapped the
appellant. The appellant laid a complaint of assault with the police. But, in the
course of 2012, the appellant’s rift with his wife began to heal. In October 2012,
there was a meeting of the appellant and Dr Sewram, during which Dr Sewram
apologised, the men shook hands and the appellant said that he would
withdraw the assault complaint. The appellant’s account as to how the attacks
upon Dr Sewram had come about was to suggest that Sugen Naidoo had
orchestrated the attacks so as to foster suspicion of the appellant’s complicity
and thereby sought to extort money from the appellant.

[19] The appellant also called his accountant to testify as to how the
appellant’s businesses were conducted and the insufficiency of cash
transactions to fund the payments in cash that the State alleged that the
appellant had made to procure the actions taken against Dr Sewram. In
addition, the defence called witnesses to corroborate aspects of the appellant’s

testimony. These included Mr Ricky Ganhes, who testified that he had met the
appellant in March 2013 who, together with a security guard, were looking for
windows that had gone missing from one of the appellant’s factories. Mr Anesh
Premchand gave evidence principally as to being in the company of the
appellant at the time of Dr Sewram’s murder. Mr Clarence Jones, a colonel in
the SAPS, also testified. He investigated police corruption and explained the
investigations of corruption against Warrant Officer Gounder and the
allegations made against Colonel Bala Naidoo, that Bala Naidoo had
intimidated Sergeants Maharaj and Ricky Naidoo into giving witness
statements.

[20] Finally, there was expert testimony led by the State and the defence as
to the cellular telephone records produced at the trial and what they signified.
Mr Dharmesh Kanti, a manager of the law enforcement liaison division of MTN,
testified for the State, and Mr Brian Land, the proprietor of Map Centre CC, for
the defence.

[21] This extensive body of evidence gives rise to the following overarching
issue. There can be no doubt that Dr Sewram was assaulted, arrested and
charged on the basis of false accusations of sexual assault, and was ultimately
murdered by assassins acting for reward. These actions occurred by design,
not chance. The overarching issue is whether the appellant orchestrated these
actions against Dr Sewram to seek revenge for Dr Sewram’s infidelity, or
whether there is an alternative explanation that is reasonably possibly true.

[22] The appellant was convicted on six separate counts. There are
distinctive questions of law and fact relevant to each count. We consider these
questions in what follows. But, it is also relevant to our analysis that the mosaic
of events recounted in the evidence was not random. The pattern of events also
has to be considered to determine whether the guiding hand of the appellant
set in train the actions against Dr Sewram, culminating in his murder, or whether
the pattern of events is susceptible of an alternative explanation which, if
reasonably possibly true, would entitle the appellant to an acquittal. It is to this
task that we now turn.

Count 1: murder
[23] As stated earlier, on 13 May 2013, Dr Sewram was shot and killed
outside his surgery in Raisethorpe, Pietermaritzburg. It was common ground
that Messrs Dlamini, Nxumalo and Treasurer were responsible for Dr Sewram’s
murder. Also, as indicated above, before the appellant’s trial commenced, they
were convicted of Dr Sewram’s murder. In the summary of substantial facts, the
State alleged that at all times material to count 1, the appellant acted in concert
and in the furtherance of a common purpose with Treasurer, Nxumalo and
Dlamini to kill Dr Sewram. Thus, the trial court was called upon to adjudicate
whether the appellant had acted in furtherance of a common purpose with
Dlamini, Nxumalo and Treasurer, to kill Dr Sewram. The trial court found that
the appellant had done so. That finding is appealed to this Court.

[24] At the appellant’s trial, the State led the testimony of Dlamini, who shot
and killed Dr Sewram, aided and abetted by Nxumalo and Treasurer. Dlamini
testified that on 12 May 2013 he had visited Nxumalo, who was repairing a
brush cutter for him, at his home. Nxumalo asked Dlamini whether he would be
willing to kill a person who had failed to pay Nxumalo for cutting his lawn.
Dlamini was told that he would be paid R12 000 if he was willing to do so. A
firearm and transport would be provided. Dlamini said he would consider the
proposition.

[25] The following day, 13 May 2013, Nxumalo called Dlamini. Dlamini
returned to Nxumalo’s house, apparently of a mind to carry out Nxumalo’s
proposal. There he was invited to get into a motor car with Nxumalo. Treasurer,
whom Dlamini knew slightly, was in the driver’s seat. Nxumalo took out a
firearm and handed it to Treasurer. Treasurer drove to Dr Sewram’s surgery.
Nxumalo indicated that the person to be killed works at that surgery.

[26] Treasurer then explained to Dlamini how the killing was to be executed.
The person to be killed would, at the end of the working day, switch off the lights
and come out of the surgery. He may be accompanied by a woman. Treasurer
would park elsewhere.

[27] Treasurer then handed Dlamini the firearm and explained its operation.
Treasurer identified the vehicle of the person to be killed, parked close to the
surgery. Treasurer then instructed Dlamini that he should cross the street as
the person to be shot approached his vehicle. Dlamini and Nxumalo got out of
Treasurer’s car, and Treasurer went to park the car.

[28] Dlamini testified that he shot Dr Sewram, and thereafter he and Nxumalo
walked briskly to Treasurer’s parked car. They got into the car and Treasurer
drove off. Nxumalo requested the firearm so that he could return it to Treasurer.

[29] Dlamini explained that, in the course of the journey, Treasurer took out
his cellular telephone. The defence objected to the leading of further evidence
as to Treasurer’s call. The trial judge overruled the objection. Dlamini testified
that, whilst in the car, Treasurer made a call, and said the job was completed.
Dlamini did not know who Treasurer had called. Treasurer dropped off Dlamini
and Nxumalo, and returned, sometime later, with a sum of money. Treasurer
handed the money to Nxumalo. Nxumalo then paid Dlamini.

[30] The initial cross-examination of Dlamini was brief. Dlamini confirmed that
he had been convicted of the murder of Dr Sewram. He also accepted that he
had acted on the instructions of Nxumalo, and that he knew no more of the
relationship between Nxumalo and Treasurer than that they had some sort of a
connection. Dlamini was later recalled for further cross-examination. He was
asked again about the telephone call. Dlamini’s evidence-in-chief was as
follows:
‘And your evidence is that on the way to Mason’s a call was made? – Yes.
Right. Who made the call? – It was made by Treasurer.
When you say the call was made, what did Mr Treasurer do? – Treasurer phoned,
phoning some person . . . telling that person, whoever it was, that the job was
completed.
When Mr Treasurer made the call, what was he using? – He was using a cell phone.
And did Mr Treasurer say anything else during this phone call? – I do not recall
anything else.’

[31] Under cross-examination, Dlamini testified that Treasurer made the call
as they were passing the Copesville police station. As to the call itself, Dlamini
confirmed that apart from Treasurer’s voice, he did not hear any other voice.
Dlamini was asked whether there was a conversation. The question put and the
answer given were as follows:
‘And did it sound to you like a conversation, where you could only hear one of the
speakers? – Yes, I could not hear the other person who was responding.’

[32] It was submitted on behalf of the appellant that the evidence of Dlamini
posed a fundamental difficulty that the trial court had failed to recognise. The
evidence of Dlamini before the trial court established a common purpose
between Nxumalo, Dlamini and Treasurer to kill Dr Sewram, in furtherance of
which his murder took place. Neither Nxumalo nor Treasurer were called as
witnesses, though the defence indicated that Treasurer was a possible witness
made available to the defence by the State. This was also the common purpose
that had formed the basis for the convictions of Nxumalo, Dlamini and Treasurer
in separate proceedings. How then was it possible for the trial court to convict
the appellant for the murder of Dr Sewram, on the basis of an entirely distinct
common purpose that was found by the trial court to exist between Nxumalo,
Dlamini, Treasurer and the appellant?

[33] In relation to count 1, the indictment alleged that the appellant was guilty
of murder, in that he intentionally and unlawfully killed Dr Sewram. In the
summary of substantial facts the State relied on the appellant having acted in
concert with and in the furtherance of a common purpose with Treasurer,
Nxumalo and Dlamini to kill the deceased. If, however, the evidence established
beyond a reasonable doubt that Treasurer was mandated by the appellant to
find persons to murder Dr Sewram, and the murder was then carried out in
accordance with that mandate, then reliance on the doctrine of common
purpose to convict the appellant on the charge of murder would be superfluous.
The appellant would be guilty of the murder of Dr Sewram on the basis that his
mandate was discharged. This is so irrespective of whether the identity of the
appellant was disclosed to the assassin or the other accomplice, or whether
they knew of the appellant’s existence. As we will demonstrate below the same

result ensues when the doctrine of common purpose is applied. It is to the latter
enquiry that we now turn.

[34] It is certainly true that Dlamini had no knowledge of the appellant.
Dlamini testified to the agreement between himself, Nxumalo and Treasurer to
kill Dr Sewram, pursuant to which they acted to murder Dr Sewram. But does
this evidence exclude the possibility that the agreement extended further than
Dlamini appreciated? Before addressing that question, it is necessary to reflect
that by the time Treasurer was introduced to Dlamini and, if regard is had to
Dlamini’s evidence about how this had occurred, including the handing-over of
the firearm, it must have been compellingly clear that the motive for the
intended killing provided earlier by Nxumalo, namely, that it was for failure of
the deceased to pay the latter for cutting his lawn, was facile. This is all the
more so given the amount he was to be paid to kill the deceased.

[35] In our view, the agreement of which Dlamini had knowledge does not
exclude a wider agreement of which he was ignorant. In Thebus,1 the
Constitutional Court explained that the doctrine of common purpose permits of
the attribution of criminal liability to those persons who jointly undertake the
commission of a crime. The conduct of every person who acts pursuant to the
common purpose is attributable to all who form part of the common purpose. A
common purpose may come about by way of a prior agreement, express or
implied, or by way of active association and participation in a common criminal
design. In a consequence crime, such as murder, the ordinary requirement that
there must be a causal connection between the conduct of the accused and the
death of the deceased is dispensed with, provided that the accused actively
associated with the conduct of the perpetrators.

[36] An agreement between A, B and C to commit a crime does not exclude
the possibility that A is acting on the instructions of D. In these circumstances,
D is a party to the agreement to carry out the crime, even though his identity is
not disclosed to B or C. That may come about because A is acting as the agent

1 Thebus and Another v S 2003 (6) SA 505 (CC).

of D. Were it otherwise, the doctrine of common purpose would be constrained
in an unacceptable way. D, who initiates the criminal design and instructs his
agent A to carry it out, cannot escape responsibility for what he has initiated
simply on the basis that those persons his agent has employed to carry out the
crime (B and C) are ignorant of the principal’s existence.

[37] As we have indicated, the same conclusion as to an accused’s
responsibility for murder may be arrived at without recourse to any agreement
or active association under the doctrine of common purpose, but rather by the
application of the concept of mandate. If D instructs A to take the necessary
measures to murder a person, and A does so by recruiting B and C to carry out
the murder, D is responsible for the murder carried out at his behest. D’s liability
need not depend upon his agreement with A, B and C. It suffices that A acted
within the scope of the mandate given to him by D so as to cause B and C to
execute the mandate.

[38] Where an accused’s agent agrees to the common purpose, there must
be evidence of what the principal had sought of his agent and that the scope of
the agency is consistent with the agreement concluded by the agent with the
other participants. But on such a showing, the non-disclosure of the principal
does not exclude the principal from being party to the agreement, and hence to
the common purpose. So too, provided the agent acts within the scope of his
mandate to effect the murder, the principal cannot avoid liability simply because
those recruited to commit the deed are ignorant of the relationship between the
agent and his principal.

[39] For these reasons, it does not follow that because Dlamini understood
that he was to murder Dr Sewram in furtherance of a common purpose with
Nxumalo and Treasurer, the common purpose did not, in fact, include the
appellant. Provided Treasurer was acting upon the instructions of the appellant,
the appellant is party to the agreement to murder Dr Sewram.

[40] The alternative way of conceptualising the matter yields the same result.
Simply because Dlamini was ignorant of the fact that Treasurer was acting upon

the instructions of the appellant does not avoid the appellant’s liability for what
was done within the scope of the mandate he gave to Treasurer.

[41] It does not matter that Dlamini thought that the reason for killing
Dr Sewram was his failure to pay Nxumalo, nor that that reason lacked
plausibility. It is the agreement to murder Dr Sewram that matters in order to
establish liability. The reason as to why each party enters into the agreement,
or, for that matter, their appreciation of the reasons that motivate each of the
others to do so, does not determine what has been agreed. In this case, there
can be no doubt that Dlamini, Nxumalo and Treasurer agreed to murder Dr
Sewram, and in fact did so. The central question is whether there was proof
beyond reasonable doubt that the appellant was party to that agreement or
issued the instruction to Treasurer to kill Dr Sewram, and set in train the actions
that resulted in his murder.

[42] The submissions of the appellant placed some stress upon the fact that
Dlamini, Nxumalo and Treasurer were convicted on the basis of a common
purpose that made no reference to the appellant. Yet, it was argued, the case
against the appellant is predicated upon a different common purpose that
includes the appellant. In our view, there is no conceptual incongruity that
arises, nor is there any injustice to the appellant. Proof of the tripartite
agreement sufficed for the conviction of Dlamini, Nxumalo and Treasurer. More
is required to implicate the appellant. That was a central issue in the appellant’s
trial. But if Treasurer was acting on behalf of the appellant, then there is no
contradiction between the agreement relied upon for the conviction of Dlamini,
Nxumalo and Treasurer and the participation of the appellant as a party to that
agreement, through the agency of Treasurer.

[43] We turn to consider whether there was proof beyond reasonable doubt
that the appellant issued an instruction to Treasurer to have Dr Sewram
murdered, or was party to an agreement with Dlamini, Nxumalo and Treasurer
to murder him.

[44] Dlamini gave evidence of the call made by Treasurer from his cellular
telephone after the murder. Dlamini was not able to identify to whom the call
was made. At the trial, the State led the evidence of Kanti, a specialist in the
law enforcement division of MTN. Kanti also produced relevant cell phone
records.

[45] The following was established from Kanti’s evidence. At 7:10:49 pm, on
13 May 2013, Treasurer placed a call to the appellant’s cell phone. The call was
routed to voicemail. The call’s duration was 12 seconds. The call was placed
shortly after the murder. This is important evidence, taken together with
Dlamini’s testimony as to what Treasurer said on the call. Given the immediacy
of the call, the reference to the job having been completed, can only have
referenced the murder. And if this was said on a call to the appellant, it plainly
implicated the appellant in the plan to murder Dr Sewram. Treasurer would only
make such a report to the appellant if the job was one given to Treasurer by the
appellant. And that would suffice as a significant part of the mosaic of proof that
the appellant had commissioned Treasurer to procure the murder of Dr
Sewram. It would constitute Treasurer as the appellant’s agent to agree with
Dlamini and Nxumalo a plan to carry out the murder. Such a plan was agreed
and implemented. Under the doctrine of common purpose, the murder would
then be as much attributable to the appellant as it was to Dlamini, Nxumalo and
Treasurer. The other construct that would also render the appellant guilty of
murder arises if the appellant commissioned Treasurer to procure the murder
of Dr Sewram, and Treasurer then did so, recruiting Nxumalo and Dlamini for
this purpose.

[46] No doubt appreciating the significance of this evidence, the appellant
sought to cast doubt on the reliability of the records produced by Kanti. In
addition, it was submitted that the records do not establish that it was during
the call to the appellant that Treasurer spoke the words reported by Dlamini.

[47] The following submissions were made on behalf of the appellant. First,
the record of the call placed by Treasurer to the appellant’s cell phone number
reflected the suburb in which the call originated and terminated as being

Dunveria, and not Copesville. Dlamini had said that the call was made as they
were driving past the Copesville police station. The record thus lacks reliability.
Second, the duration of the call was 12 seconds. The voice message on
appellant’s phone was of longer duration, and hence no message of the kind
reported by Dlamini could have been left. Third, the call records reflect that
Treasurer made further calls and received one not long after the call placed by
him to the appellant. The call received was 59 seconds, and one of the calls
placed was 24 seconds, long enough to have spoken the words recalled by
Dlamini. Fifth, Dlamini appears to have testified that Treasurer had a
conversation, when instead the call record reflected that the call to the appellant
went to voicemail. Sixth, the appellant in his testimony denied having received
any voicemail from Treasurer. Cumulatively, so it was contended, the State had
failed to prove beyond reasonable doubt that the words spoken by Treasurer in
the car were addressed to the appellant.

[48] Two facts are incontestable on the evidence. First, Treasurer made a
call and said the words ‘the job was completed’. This was direct evidence,
undisturbed by cross-examination. Second, Treasurer placed a call to the
appellant’s cell phone number, which went to voicemail. Does the evidence cast
a reasonable doubt upon the likelihood that Treasurer spoke the words reported
by Dlamini in the course of his call to the appellant?

[49] The evidence of Kanti does not support the proposition that the
12 second duration of the call was insufficient for Treasurer to have left a
message containing the words reported by Dlamini. Kanti, under cross-
examination, stated that the entry in the records reflecting the duration of the
call is a time period after the voice prompt has ended and, to use his word, ‘the
ping’ is heard. In other words, the duration of Treasurer’s call to the appellant
was 12 seconds after the voice prompt ended. Quite long enough for Treasurer
to have left a voice message using the words ‘the job was completed’. It does
not matter that Treasurer might have miscalculated or was mistaken that the
message would be recorded and left on voicemail.

[50] The appellant was extensively cross-examined on his cell phone
records. The records showed that the appellant had contact with Treasurer on
his cell phone 9 times in the course of 2012, and again on 3 April, 8 May and
13 May of 2013. The appellant’s response was to dispute that he received a
call or message from Treasurer on 13 May 2013 at 7:10 pm. This selective
denial is adverse to the appellant. That Treasurer placed a call to the appellant
on 13 May 2013 at 7:10:49 pm appears in the telephone records of both the
appellant and Treasurer. It was not disputed before us by the appellant’s
counsel. The appellant’s emphatic denial of the incriminating call from
Treasurer on 13 May 2013, without any explanation or proof as to why the
records were erroneous, is unconvincing. The denial is consistent with his
recognition of the call’s inculpatory relevance. The appellant was also unable
to explain the extent of his numerous cell phone calls with Treasurer.

[51] Nor does careful attention to the cross-examination of Dlamini establish
that he agreed that Treasurer had held a conversation with the person to whom
he reported that the job was completed. When it was put to Dlamini in cross-
examination whether the call made by Treasurer sounded like a conversation,
Dlamini’s answer, as we have observed was, ‘I could not hear the other person
who was responding’. If Dlamini could not hear another person, he could not
know whether there was a conversation taking place. There was no guile in
Dlamini’s testimony.

[52] The records of Treasurer’s cell phone do reflect that after he placed the
call to the appellant, he received a call at 7:13 pm of a duration of 59 seconds;
made a call at 7:28 pm of 5 seconds; and made a further call at 7:40 pm of
24 seconds. However, Dlamini’s evidence was clear that it was Treasurer who
made the call when he said the job was completed. This was not dealt with in
Dlamini’s cross-examination. This evidence renders the call received at
7:13 pm outside the bounds of consideration as being the call during which
Treasurer reported the murder. Nor, as conceded by counsel for the appellant,
was the second call of 5 seconds a likely contender.

[53] That leaves the last call at 7:40 pm. But this call is also not likely to have
been the call when Treasurer spoke the words that Dlamini reported. First,
Treasurer was driving Dlamini and Nxumalo back to an informal settlement,
Masons, after the murder. Dlamini was specifically asked, under cross-
examination, whether Treasurer made any other calls in the course of the
journey, other than the one call to which Dlamini had testified. Dlamini’s answer
was ‘no’. The phone record reflects that the first call, in the relevant time period,
made by Treasurer was the call to the appellant at 7:10 pm.

[54] Second, the call Dlamini heard Treasurer making was at a point on the
journey when they were passing the Copesville police station. The defence
elicited from Dlamini that this police station was not far from the clinic at
Masons, where Dlamini and Nxumalo were dropped off. Defence counsel
estimated that to drive from the Copesville police station to the clinic at Masons
would take 5 minutes. Dlamini could not confirm this, but did not deny it. This
sequence of events, given that Dlamini witnessed Treasurer making but one
call, and was dropped off shortly thereafter, renders it entirely improbable that
a call Treasurer made at 7:40 pm was the call during which Treasurer reported
the murder.

[55] There was a considerable amount of time and energy taken up during
the trial seeking to understand why the record of the call placed by Treasurer
to the appellant records Dunveria rather than Copesville as the originating base
station from which the call was sent on the network. What is plain from the
evidence of Kanti, the expert called by the State, is that the cell tower that relays
the call depends upon where the signal is strongest at a particular time to
connect to the base station. The density of the base stations within the cell
network determines the coverage of each station which may vary from 0-3.5
kilometres. As a result, it was not possible to pinpoint the exact location of the
caller. The network admits of too much variability to do so. This however does
not cast doubt upon the reliability of the cell phone records that were produced
in evidence. If anything, it is supportive, as it indicates proximity. Kanti
explained how the cell phone records of Treasurer were extracted. These
records were extensively utilised by the State and the appellant, leaving no

doubt as to the call made by Treasurer to the appellant, and the other calls
made and received by Treasurer during the relevant time period.

[56] This analysis of the evidence affords proof, beyond reasonable doubt,
that Treasurer phoned the appellant after the murder, en route to his dropping
off Dlamini and Nxumalo. Dlamini heard what Treasurer said on the only call
that Treasurer made in the course of the journey. On the evidence it was
established, beyond reasonable doubt, that Treasurer’s words, ‘the job was
completed’, were said on the call Treasurer placed to the appellant’s cell
number.

[57] Once that is so, as we have explained, Treasurer’s report to the
appellant concerning the completion of ‘the job’ implicated the appellant in the
murder. There is no way of understanding Treasurer’s report other than to
conclude that the appellant had mandated Treasurer to procure the murder of
Dr Sewram. And Treasurer had done so. The extensive telephonic interactions
between Treasurer and the appellant referred to above supports this. That
being so, and if the other evidence adduced on behalf of the State supports that
conclusion, then the appellant was guilty of the murder. Additionally,
Treasurer’s report to the appellant afforded evidence that Treasurer was the
appellant’s agent, and this made the appellant a party to the common purpose,
with Dlamini, Nxumalo and Treasurer, to kill Dr Sewram. And under the doctrine
of common purpose, the actions of those who carried out the murder are
attributable to the appellant.

[58] The evidence of Dlamini does not stand alone. The murder of Dr Sewram
was considered by the trial court in the light of the other actions that were taken
against Dr Sewram before his murder. Certain of these actions form the basis
of other crimes of which the appellant was convicted. We consider the evidence
and the appeals relating to these counts below. What, however, cannot be
disputed is that Dr Sewram was subjected, in the course of 2012, to a range of
hostile actions, involving a variety of persons, that were orchestrated,
intensified, and culminated in his murder.

[59] The chronology is as follows. As alluded to earlier, in December 2011,
the appellant discovered what he feared was an adulterous affair that
Dr Sewram and the appellant’s wife had been conducting. On 13 February
2012, a charge of sexual assault was laid by Mariamma Kisten against Dr
Sewram. Dr Sewram was charged with sexual assault. At his court appearance
on 14 February 2012, the charge was withdrawn. On 21 February 2012, the
appellant laid a charge of assault against Dr Sewram. The case was withdrawn
against Dr Sewram in July 2012. On 21 August 2012, Sonali Sookraj laid a
charge of sexual assault against Dr Sewram. Dr Sewram was arrested and
charged. On 30 October 2012, the charge was withdrawn. On 24 October 2012,
Dr Sewram, on exiting his surgery, was shot several times with a paintball gun,
utilising hard objects, and sustained certain injuries. On 13 May 2013,
Dr Sewram was murdered outside his surgery.

[60] Sugen Naidoo was the State’s principal witness. Sugen Naidoo, the self-
confessed drug addict, liar and extortionist, gave evidence that the appellant
had, over the course of 2012, sought his assistance to orchestrate a campaign
against Dr Sewram to denigrate him and ultimately cause him to leave
Pietermaritzburg. These efforts are constituted by the offences with which the
appellant was charged. The appellant had become obsessed with taking
revenge upon Dr Sewram for the damage he had caused to the appellant’s
marriage. We were warned, correctly, by the appellant’s counsel that we should
treat the evidence of Sugen Naidoo with caution. And we do so.

[61] One further aspect of Sugen Naidoo’s evidence warrants mention. He
testified that in 2012 the appellant had asked him whether he knew Treasurer.
Sugen Naidoo informed the appellant that Treasurer was an ex-policeman and
a known criminal. The appellant informed Sugen Naidoo that he had
approached Treasurer to kill Dr Sewram for an amount of R80 000. The
appellant sought the assistance of Sugen Naidoo to act as Treasurer’s driver.
Sugen Naidoo declined to assist. Given that Treasurer did indeed procure the
murder of Dr Sewram, it begs the question as to how Sugen Naidoo would have
known in advance of the plan to use Treasurer for this purpose, save from the
appellant. He could also not have known of the extensive telephonic contact

between the two. Furthermore, Sugen Naidoo did not procure the services of
Treasurer, Nxumalo or Dlamini to murder Dr Sewram. How then did Treasurer
come to arrange the murder? Sugen Naidoo’s evidence provides an answer to
these questions. The appellant’s evidence does not.

[62] But there remains the overarching question. How did it come to pass that
Dr Sewram, in the course of 2012, suffered the hostile actions catalogued
above? It was certainly not a matter of chance or bad luck. These were
deliberate actions taken against him. One answer is the account offered by
Sugen Naidoo: Dr Sewram was targeted by the appellant. The other answer,
given by the appellant, is that Sugen Naidoo orchestrated the sexual assault
charges and the paintball attack so as to extort money from the appellant.

[63] The answer of the appellant is hard to fathom. True enough Sugen
Naidoo knew of the appellant’s marital troubles. The details of these troubles,
provided by Sugen Naidoo, were not in contestation, and indeed, were
corroborated by the appellant and other defence witnesses. It indicates that
Sugen Naidoo was truthful about these being disclosed to him by the appellant,
and a closer relationship that subsisted between Sugen Naidoo and the
appellant than the appellant was willing to admit. We are constrained to ask
how would the targeting of Dr Sewram, unbidden by the appellant, have
permitted Sugen Naidoo to extort money from the appellant? Presumably, on
the premise that Sugen Naidoo, a policeman assigned to the Mountain Rise
police station, would use his position to cast suspicion upon the appellant for
the actions taken against Dr Sewram. This premise is entirely implausible. Had
Sugen Naidoo sought to take action against Dr Sewram, unbidden by the
appellant, as a stratagem to extort money from the appellant, the appellant
would simply have reported the matter to the police at Mountain Rise, with
whom he was admittedly closely connected. Indeed, on the appellant’s own
version, he had a close friendship with Sugen Naidoo’s wife, Chantal Norman,
who was a senior police officer at Mountain Rise police station. Any attempt by
Sugen Naidoo to extort money from the appellant would have simply been
rebuffed by the appellant on the basis that there was absolutely no basis to
implicate him in any wrongdoing against Dr Sewram. The usual premise for

extortion is either the complicity of the person to be extorted in wrongdoing or
the ability of the extortionist to make it appear so. The appellant contended that
he was not complicit in the actions taken against Dr Sewram. If that was so,
Sugen Naidoo’s efforts at extortion would have been short-lived. If Sugen
Naidoo had attempted falsely to implicate the appellant in the actions against
Dr Sewram, it would have been an easy matter for the appellant to show that
he had no connection to Kisten or Sookraj, an aspect to which we will come.

[64] Nor does the appellant’s reliance upon extortion by Sugen Naidoo cover
the field of actions taken against Dr Sewram. One of those actions was the
appellant’s own complaint of assault against Dr Sewram. How would that place
Sugen Naidoo in a position to extort money from the appellant? Nor does the
appellant’s incredulous supposition account for the murder of Dr Sewram. It
also does not explain the efforts made by the appellant to incite Sithebe to
murder Dr Sewram, the basis of count 6. This too, will be dealt with later.

[65] In sum, the appellant’s account that the actions taken against Dr Sewram
were occasioned by Sugen Naidoo’s efforts to extort money from the appellant
do not withstand scrutiny.

[66] In our view, once the appellant’s account of the actions taken against
Dr Sewram cannot be believed, as we ultimately find, then the only other
account as to what befell Dr Sewram is the appellant’s serial efforts, with a clear
motive to harm Dr Sewram, and later to procure his murder.

[67] Furthermore, for all the caution that Sugen Naidoo’s evidence warrants,
there are material respects in which his essential position, that the appellant
sought to procure persons to harm the appellant, was materially corroborated
by a number of other witnesses and events with whom and with which he was
not always or necessarily connected, as well as by objective evidence.

[68] First, Sugen Naidoo’s brother-in-law, Morné Emersleben, gave evidence
that he met the appellant when Emersleben was staying with Sugen Naidoo.

This occurred in May 2012. The appellant explained that Dr Sewram and the
appellant’s wife had been ‘messing around’, and Sugen Naidoo then asked
whether Emersleben knew of someone who could assault Dr Sewram. The
appellant explained that Dr Sewram had two surgeries, and that the surgery in
Raisethorpe had no cameras. Although, Emersleben was extensively cross-
examined, his attorney accepted that when Sugen Naidoo asked Emersleben
about a person to assault Dr Sewram, the appellant was present. The
appellant’s presence, in these circumstances, supports the central premise of
Sugen Naidoo’s evidence against the appellant.

[69] Second, in the course of the cross-examination of Sugen Naidoo, the
defence introduced into evidence the statement that had been taken from
Warrant Officer Gounder who, in 2012, had served with Sugen Naidoo at the
Mountain Rise police station. Sugen Naidoo testified that he had conceived of
a plan, with the concurrence of the appellant, to plant drugs in Dr Sewram’s
vehicle, and upon refinement of the plan, in Dr Sewram’s surgery, and then to
arrest Dr Sewram for  the illegal  possession of drugs. Sugen Naidoo’s evidence
was that he had sought the assistance of Gounder and Warrant Officer G R
Naidoo to carry out the plan. Sugen Naidoo did not go through with the plan.
But Gounder’s statement confirms that there was such a plan, and that the
appellant undertook to pay the sum of R10 000 to have the plan executed as
revenge for Dr Sewram having had an affair with the appellant’s wife. Gounder
was not called to testify, but the defence placed his statement into evidence,
and must accept the consequences of that election.

[70] Third, the State called Shaik-Cassim. He too is a brother-in-law of Sugen
Naidoo. Shaik-Cassim testified that, in June or July of 2012, the appellant and
Sugen Naidoo came to his house. The appellant asked Shaik-Cassim whether
he knew of someone who would break the hands and legs of Dr Sewram. Shaik-
Cassim testified that he did, but that they were ‘bad guys’ who would end up
killing Dr Sewram. To this, the appellant replied, ‘do whatever it takes’. The
appellant said that he had money for this purpose. He described the surgery
and that it had no cameras. The appellant then left, and returned with R5 000.

He gave R1 200 to Shaik-Cassim to use to transport the proposed assailants
from Durban, and the balance was given to Sugen Naidoo.

[71] Shaik-Cassim was strenuously cross-examined. It was pointed out to
him that Sugen Naidoo’s statement indicated that Sugen Naidoo first
approached Shaik-Cassim about the proposed assault, at the instance of the
appellant, before Sugen Naidoo, Shaik-Cassim and the appellant met at Shaik-
Cassim’s home, where the plan was further discussed. That difference is hardly
of great moment. The evidence of Sugen Naidoo and Shaik-Cassim are at one
that there was a meeting at Shaik-Cassim’s home, where the planned assault
upon Dr Sewram was agreed with the appellant.

[72] Much was also made of Shaik-Cassim’s criminal history and involvement
in dealing drugs. But on the central issue, Shaik-Cassim gave clear evidence.
The appellant met with him and Sugen Naidoo to procure the assault of Dr
Sewram. Although the appellant denied that this meeting took place, there is
nothing to fault the trial court’s assessment that Shaik-Cassim also confirmed
the central account of Sugen Naidoo as to who was behind the attacks upon Dr
Sewram. For all the attacks on the State’s miscreant witnesses, by counsel on
behalf of the appellant, one might rightly ask why they would all unnecessarily
implicate themselves in wrongdoing by testifying against him.

[73] For these reasons, we find that there is no basis to disturb the conviction
of the appellant for the murder of Dr Sewram, and the appeal accordingly fails
in respect of count 1.

Count 6: conspiracy to commit murder, alternatively incitement to commit
murder
[74] The State alleged that, in early February 2013, the appellant hired
Mlungisi Sithebe to kill Dr Sewram. Sithebe pretended to agree, but then
informed Dr Sewram of the plan to kill him. In the alternative, the appellant
unlawfully and intentionally incited Sithebe to murder Dr Sewram. The trial court
found that the appellant and Sithebe did conspire to kill Dr Sewram. Sithebe’s
change of heart occurred after the agreement to murder Dr Sewram had taken

place. On this basis, the trial court convicted the appellant on the main count of
conspiracy. The appellant appeals his conviction to this Court.

[75] At the trial, Sithebe’s evidence was led and cross-examined. That took
place in the period 28-30 September 2015. The cross-examination of Sithebe
was detailed and lengthy. On 19 October 2015, the prosecution raised with the
court a video that Sithebe had taken and that the prosecution wished to have
admitted into evidence. Sithebe had referenced the video in his evidence-in-
chief, but the State had not sought to admit the video into evidence. In chief,
Sithebe stated that the video had been made on the second occasion that the
appellant had pointed out Dr Sewram’s surgeries to him. The defence placed
in issue the admissibility of the video, in particular its originality and authenticity,
and also the requirement that the prosecution prove the identity of the speakers
on the video.

[76] The trial court decided, perhaps unwisely, that these matters were to be
determined in what was styled a trial-within-a-trial. Sithebe was recalled. He
testified that he had recorded a video on his cell phone on 20 February 2013,
during a journey he had taken with the appellant. The video, he testified,
recorded a conversation between Sithebe and the appellant near Dr Sewram’s
surgery. The conversation ended with the following statement made by the
appellant: ‘take this number’. Sithebe explained that the appellant was
referencing the number of Dr Sewram’s surgery, which the appellant had
indicated Sithebe should telephone.

[77] A lengthy cross-examination followed, in which the defence raised the
following issues with Sithebe: when the video was taken; how it was taken; the
phone calls made by Sithebe to Dr Sewram and the appellant on 20 February
2013; that Sithebe placed the cell phone, on which the video was recorded, with
the pawnbrokers, Cash Crusaders; Sithebe’s prior statements to the police; and
what was said on the video.

[78] At the conclusion of the trial-within-a-trial, the trial judge explained her
understanding of the procedure she had adopted. The trial judge indicated that

she would give a ruling as to the admissibility of the video evidence, and
depending on the ruling, the veracity of the contents of the video could then be
traversed. The trial judge, in due course, made the following rulings. First, the
video was admitted into evidence. Second, the evidence produced in the course
of the trial-within-a-trial was incorporated as evidence in the main trial. Third,
leave was given to the defence to recall Sithebe, Sugen Naidoo and Kisten for
further cross-examination.

[79] The trial court carefully delineated the issues in respect of which further
cross-examination would be permitted. In respect of Sithebe, these were issues
not previously canvassed in cross-examination. The entitlement of the defence
to cross-examine Sithebe further was circumscribed and confined to the
following: the veracity and reliability of the video recording; the context in which
the video recording was made; the contents of the video recording as it was
relevant to such context; the contents of the video recording in relation to the
evidence given by Sithebe at trial and in his two statements, to the extent not
already canvassed; the contents of certain further particulars given by the State
in respect of the video; and aspects pertaining to the date and time of the
recording.

[80] Before Sithebe could be further cross-examined, he died. The defence
submitted to the trial court that the incomplete cross-examination of Sithebe
required that all of Sithebe’s evidence must be excluded from consideration.
This, it was argued, was the necessary consequence of the recognition by the
trial court of the appellant’s constitutional right to challenge the evidence
produced by the State at trial, which right could no longer be fully exercised in
respect of the testimony of Sithebe. The trial court, referencing a number of
cases that have considered this issue, found that, given the extent of the cross-
examination of Sithebe that had already taken place, the inability further to
cross-examine Sithebe occasioned no prejudice to the appellant and did not
violate his right to a fair trial. Consequently, the evidence of Sithebe and the
video evidence were not excluded from consideration by the trial court. Indeed,
it provided the basis for the appellant’s conviction in respect of count 6.

[81] On behalf of the appellant, it was submitted to this Court that the trial
court’s failure to accord the appellant his constitutional rights was an error, and
that all the evidence of Sithebe should have been excluded. And with it, the
appellant’s conviction in respect of count 6.

[82] The appellant enjoyed the right to challenge evidence. This right formed
part of the appellant’s overarching right to a fair trial, entrenched in the Bill of
Rights in terms of s 35(3)(i) of the Constitution. Under our adversarial system
of criminal justice, the right to challenge evidence includes the right of the
accused in a criminal trial to cross-examine the witnesses whose evidence is
led by the State. This is uncontroversial.

[83] Difficulties arise when a witness who has given evidence is no longer
available for cross-examination, or, as here, cannot complete their cross-
examination. In a number of decisions, the high courts have had occasion to
consider these matters.2 Two approaches have found support. First, the
exclusion of evidence should depend upon the exercise of a discretion by the
trial court. The discretion is responsive to various case-specific considerations.
How truncated was the right to cross-examine? What is the nature of the
evidence? Is the evidence to be admitted reliable and otherwise confirmed?
These considerations are by no means exhaustive. The second approach is
that the right to challenge evidence is a fundamental right. It is not a right of
degree. If the right is infringed, the better view is that the evidence should be
excluded. The adoption of a discretion fails to accord proper recognition to the
right as fundamental to the fairness of the trial. A discretion of this kind also
gives rise to considerable indeterminacy as to how it is exercised. Better then,
simply to exclude the evidence.

[84] The correct starting point for the analysis is the recognition that an
accused has the right to cross-examine those witnesses whose evidence is
relied upon by the prosecution. Where that right cannot be exercised, or cannot
be exercised in full, the court has a duty to ensure that the trial remains fair. To

2 S v Motlabane and Others 1995 (8) BCLR 951 (B); S v Khumalo [2012] ZAGPJHC 141 (GP);
S v Msimango and Another 2010 (1) SACR 544 (GSJ).

do so, the trial court should not engage in conjecture as to what the cross-
examination would have been likely to yield. That is speculative. Once a body
of evidence cannot be cross-examined or cross-examined fully, the safest
course, to ensure the fairness of the trial, is to disregard that evidence, because
the right to challenge evidence is so intrinsic to what makes a trial fair. It matters
not that the impossibility of cross-examination is not attributable to the fault of
any person. It is the fact of impossibility that renders the right nugatory.

[85] The clearest case is one in which the witness called by the prosecution
gives evidence-in-chief, but then cannot be cross-examined. The accused is
deprived of the right to cross-examine. That is the deprivation of a fundamental
right. The only question is this: what remedy should the court provide to the
accused? In this situation, the remedy will ordinarily be self-evident: the
evidence must be excluded from consideration by the trial court.

[86] In the present case, a more nuanced issue arises. To what evidence
does the right of the appellant have application? As we have observed, Sithebe
died after the trial court had made an order that he was to be recalled. However,
his recall was to permit of further cross-examination within a specified remit.
The defence was permitted to cross-examine Sithebe exclusively with regard
to the video evidence that had been admitted into evidence. It will be recalled
that Sithebe had already been extensively cross-examined in respect of all his
other evidence. And even in respect of the video evidence, the trial court ruled
that the evidence yielded from the trial-within-a-trial was admitted as evidence
in the main case. Much of that testimony was taken up with the cross-
examination of Sithebe, and it was not confined to issues of authenticity and
reliability of the video.

[87] The appellant does not challenge the order made by the trial court as to
the remit within which the cross-examination of Sithebe was to take place, upon
his recall. Once that is so, the appellant’s right to cross-examine was
circumscribed. The right was only capable of being exercised in respect of the
contents of the video: what it depicted, when it was made, what was said, the
true import of that speech, and its bearing upon other testimony and statements

given by Sithebe. What the order of the trial court did not sanction was a re-
visitation of other aspects of Sithebe’s evidence. Put simply, whatever latitude
might have been allowed to the appellant or his counsel, the cross-examination
had to have relevance to the contents of the video.

[88] Once that is so, the right of the appellant went no further than to cross-
examine Sithebe, upon his recall, as to the contents of the video. It was the
potentially damaging contents of the video, upon its admission into evidence,
that led the trial judge to permit of the further cross-examination of Sithebe. The
right afforded to the appellant was an opportunity, by way of cross-examination,
to negate the contents of the video. That is what the trial court ordered, in
fairness, to the appellant. But if the video is excluded from the evidence, then
the appellant suffers no infringement of his right, because the right was never
of application outside the contents of the video. And since the exclusion of the
video evidence eliminates any damaging evidence recorded on the video,
nothing more is required to be fair to the appellant. The fullest exercise of his
right could never have achieved more than what is secured by the exclusion of
the video evidence.

[89] The exclusion of all of Sithebe’s evidence as a consequence of the
appellant’s inability to cross-examine Sithebe on the contents of the video
would constitute a remedy entirely disproportionate to the right that the
appellant had foregone. There was a substantial body of evidence given by
Sithebe that had been thoroughly cross-examined. There is no reason why this
evidence should not be allowed to stand simply because the right to cross-
examine Sithebe on the contents of the video could not be exercised.
Wholesale exclusion would be a remedy lacking rational justification. It would
want for proportionality. And such a remedy would not make the trial any fairer
to the appellant in comparison to the remedy we consider appropriate to the
right foregone – the exclusion of the video evidence.

[90] In sum, our approach recognises that the right to cross-examine is a
fundamental right, and, if it cannot be exercised, the court must fashion a
remedy that secures the fairness of the trial. What this requires is an

appropriate remedy that cures the absence of the right to cross-examine. A
remedy is not appropriate if it lacks proportionality or rational justification. The
remedy flows from the right, and the recognition of the right as fundamental to
our constitutional commitment to a fair trial.

[91] So understood, we do not favour the position that would repose a
discretion in the trial court to weigh the probative value of the evidence that has
not been subjected to cross-examination against the prejudice to the accused
that arises from the absence of the right to cross-examine. Such a test, redolent
of many common law regimes for deciding whether to exclude evidence, fails,
in our view, to recognise the constitutional significance of a right that is intrinsic
to a fair trial. The absence of the right to cross-examine is not measured by a
cost-benefit analysis as to who gains or loses, and by how much. Rather, if an
accused cannot enjoy a right that is fundamental to the fairness of the trial, the
court must restore the fairness of the trial. That is not done by attaching weight
to the probative value of the evidence and engaging in conjecture as to what
difference the cross-examination might have made.

[92] The trial court did not follow this approach. Rather, it admitted the video
evidence and relied upon it, because the trial court considered the video
evidence to have probative value. In particular, the trial court found that the
video evidence corroborated Sithebe’s other evidence. And it was not thought
to be prejudicial. For the reasons given, this is not the correct way to determine
the remedial consequences of the appellant’s inability further to cross-examine
Sithebe.

[93] Rather, given that the appellant’s right to cross-examine concerned the
contents of the video, the loss of this right required that only the video be
excluded from the evidence at trial. Such a remedy restores the fairness of the
trial, because the appellant does not suffer the detriment of the video evidence
that the further cross-examination was intended to test. The remedy is
proportionate, because it is bounded by the remit of the order that gave rise to
the right. The remedy is also just, because it leaves in place the evidence that
was subject to the very fullest cross-examination. We accordingly find that the

trial court fell into error in failing to rule that the video evidence must be
excluded.

[94] Once that is so, our analysis turns to the evidence of Sithebe, shorn only
of the video evidence. The trial court found that the appellant and Sithebe
conspired to kill Dr Sewram. It was submitted, on behalf of the appellant, that
the evidence of Sithebe did not support the appellant’s conviction. The crime of
conspiracy required that the appellant and Sithebe reached an agreement to
kill Dr Sewram.3 No such agreement, so it was contended, took place.

[95] There is merit in this submission. Sithebe’s evidence was that on the first
occasion he met with the appellant, the appellant had sought to persuade
Sithebe to scare Dr Sewram, for which he would be paid R100 000. On the
second occasion, what the appellant wanted of Sithebe went further. He wanted
Sithebe to kill Dr Sewram. Sithebe certainly gave consideration to the matter,
and was much tempted by the offer of R100 000. But Sithebe’s evidence does
not indicate that he, at any point, agreed to the appellant’s proposal. Indeed, on
his account, his religious scruples prevailed, and he went to inform Dr Sewram
that the appellant had sought to recruit him to kill Dr Sewram. The trial court
found that Sithebe had agreed to assist the appellant before his change of
heart. But in our view, Sithebe was equivocal as to the appellant’s proposal and
never reached a definite agreement with the appellant. That being so, the
appellant’s conviction on the charge of conspiracy cannot stand.

[96] The appellant was charged, in the alternative, with incitement to commit
murder. The question is whether the evidence at trial supports a conviction on
this charge?

[97] Section 18(2) of the Riotous Assemblies Act 17 of 1956 renders a person
who incites, instigates, commands or procures any other person to commit any
offence guilty of an offence, liable on conviction to the punishment to which a
person convicted of actually committing that offence would be liable. The key

3 S v Sibuyi 1993 1 SACR 235 (A) at 249E.

feature of the offence of incitement, for present purposes, is that the person
charged with incitement, ‘seeks to influence the mind of another to the
commission of a crime’.4 It matters not whether the person sought to be
influenced is susceptible to such influence.

[98] Sithebe testified that the appellant had in February 2013 collected
Sithebe and driven him to point out Dr Sewram’s surgeries. During this journey,
the appellant asked of Sithebe whether he would be able to procure a firearm
to kill Dr Sewram, who, the appellant had previously explained, had been in a
relationship with the appellant’s wife. The appellant pointed out which of the
surgeries had no cameras. The appellant promised to pay R100 000, if Sithebe
would kill Dr Sewram. According to Sithebe, the appellant withdrew money from
an ATM, and gave him R3 000 to procure an unlicensed firearm. Sithebe was
not ultimately persuaded to agree with the appellant to kill Dr Sewram. Indeed,
troubled by his conscience, he went to Dr Sewram’s surgery and informed him
of the appellant’s plan to have him killed. Sithebe telephoned the appellant and
claimed to have shot Dr Sewram. The appellant sought to obtain confirmation
of this, and ultimately realised that Dr Sewram had not been shot. The appellant
nevertheless sought to have Sithebe kill Dr Sewram whilst the appellant was
overseas. Sithebe reported the matter to the police.

[99] The appellant denied that he had incited Sithebe to murder Dr Sewram.
He acknowledged meeting with Sithebe in February 2013. The meeting was,
he testified, to arrange for certain guarding services for premises owned by the
appellant. He explained that he had encountered problems with the services
rendered by the incumbent service provider, Tiger Force, and discussed with
Sithebe that Enviro Watch would take over the guarding service. Sithebe
worked for Enviro Watch. This was the basis of the appellant’s meeting with
Sithebe in February 2013, and also of the calls that passed between the two on
20 February 2013. The call records also showed that the appellant and Sithebe
were in contact on 6 occasions on 10 March 2013, and yet further calls were
made in the period of 22-23 March 2013. The appellant testified that these calls

4 S v Nkosiyana 1966 (4) SA 655 (A) at 658-9.

and the subsequent meetings with Sithebe concerned a break-in and theft that
had taken place at the appellant’s premises in Mkondeni. These were the
premises that Sithebe had secured a contract to protect. The appellant
suspected Sithebe of some complicity in the theft.

[100] There can be no doubt that if Sithebe’s evidence is accepted, the
appellant is guilty of the incitement of Sithebe to murder Dr Sewram. The
appellant, on Sithebe’s evidence, plainly sought to influence Sithebe to murder
Dr Sewram. The appellant expressed his wishes plainly. He made provision for
Sithebe to purchase a firearm. He pointed out to Sithebe the whereabouts of
the two surgeries. And he offered Sithebe a large reward once the murder had
taken place. That is incitement beyond reasonable doubt.

[101] The trial court found that, quite apart from video evidence, the appellant’s
version fell to be rejected. The conflicting versions of Sithebe and the appellant
must be considered by recourse to the following evidence. On 20 February
2013, apart from the calls that took place between the appellant and Sithebe,
Sithebe’s phone records reflect the fact that Sithebe phoned the two surgeries
of Dr Sewram. That is entirely consistent with Sithebe’s evidence that he sought
out Dr Sewram, after his journey with the appellant, to warn him of the
appellant’s murderous plans.

[102] Why, it may be asked, would Sithebe have telephoned the surgeries of
Dr Sewram on the very day in February that the appellant admits that he met
with Sithebe? Sithebe had no prior connection to Dr Sewram. If the February
meeting was simply concerned with a security guarding contract, what would
explain Sithebe’s conduct in phoning Dr Sewram. Nor was it ever suggested
that Sugen Naidoo knew of or was in any way connected to Sithebe.

[103] In the cross-examination of Sithebe it was suggested that Sithebe was
in contact with Dr Sewram, because Dr Sewram and Sithebe were conspiring
together to kill the appellant. There was simply no basis for this claim. Sithebe
did not know of Dr Sewram. Sithebe’s telephone records show no calls to
Dr Sewram prior to 20 February 2013. If Dr Sewram wished to conspire to kill

the appellant, there is simply no showing as to how he knew Sithebe. Dr
Sewram’s conspiracy theory is entirely fanciful and unsubstantiated.

[104] Once that is so, as the trial court found, Sithebe’s account is confirmed
in a material respect by Sugen Niadoo and the other witnesses referred to
above, more particularly in that the appellant wished the deceased harm, on
the basis of his wife’s infidelity with Dr Sewram. The appellant’s version cannot
explain Sithebe’s call to the surgeries and falls to be rejected. The timing of the
appellant’s approach to Sithebe is also significant. It occurred many months
after the appellant supposedly made peace with the deceased and their
agreement to put their past discord behind them. This was the evidence of the
appellant in his statement in terms of s 115(1) of the Criminal Procedure Act
and also at the trial. The approach made to Sithebe and the ongoing criminal
acts planned and taken against Dr Sewram are indicative of an ongoing
vendetta undertaken by the appellant. This lends a lie to the lasting accord that
was supposedly concluded.

[105] In the result, while the appellant’s conviction on the charge of conspiracy
to murder must be set aside, the appellant is guilty of the alternative charge of
incitement to murder Dr Sewram.

Count 2: defeating or obstructing the course of justice
[106] The trial court convicted the appellant of obstructing the course of justice
in that, on 13 February 2012, he enlisted the assistance of Mariamma Kisten to
lay a false complaint of sexual assault against Dr Sewram, knowing the
complaint to be false.

[107] It is common ground that Kisten did make a complaint of sexual assault
against Dr Sewram; a docket was opened; the complaint was false; and Kisten
did so for the payment of money. The trial court, applying the required caution
to the evidence of both Kisten and Sugen Naidoo, found their evidence to be
truthful, thereby implicating the appellant as the person who knowingly procured
the false charge against Dr Sewram.

[108] The appellant contended before this Court that the trial court should not
have found Kisten and Sugen Naidoo to be truthful witnesses. In addition, the
link between Kisten and Sugen Naidoo, and hence the appellant, was Daryl
Gounder. Gounder was not called by the State, and hence the State had failed
to prove that Gounder had received instructions, ultimately from the appellant,
to procure Kisten to lay the false charge.

[109] Kisten’s evidence was that Gounder sought her assistance to lay the
false charge of sexual assault against Dr Sewram. Gounder indicated that he
did so to assist a friend whom he did not identify. Sugen Naidoo’s evidence was
that the appellant had come up with the plan to lay a false charge of sexual
assault against Dr Sewram. Sugen Naidoo had asked Gounder to find the
person to do so. Gounder did so. But Sugen Naidoo confirmed that the
appellant and Gounder did not communicate in carrying out the appellant’s
plan. It must accordingly be accepted that it is Sugen Naidoo alone who was in
a position to identify the appellant as the person at whose instance the false
charge came to be laid.

[110] The question is whether Sugen Naidoo’s evidence sufficed for this
purpose. That Kisten laid a false complaint of sexual assault against Dr Sewram
is beyond doubt. That she did so at the instance of another and for reward is
also clear. Sugen Naidoo’s testimony was that the appellant initiated the plan
to have a false complaint of sexual abuse laid against Dr Sewram, mandated
him to execute the plan, and provided the money to do so. This was but one
action taken by the appellant in an orchestrated campaign against Dr Sewram.

[111] Who then had reason to target Dr Sewram by causing Kisten to act as
she did? We have, in considering the murder charge against the appellant,
already assessed the two accounts offered at trial as to how it came about that
Dr Sewram suffered serial adverse actions, culminating in his murder. Either,
as Sugen Naidoo testified, this resulted from the efforts of the appellant to take
revenge against Dr Sewram for the infidelity with the appellant’s wife. Or, Sugen
Naidoo targeted Dr Sewram to extort money from the appellant. But, for
reasons we have already set out above, this latter account is so lacking in

evidential support or coherence that it can safely be rejected. Once that is so,
it leaves intact the explanation provided by Sugen Naidoo.

[112] We were reminded by counsel for the appellant of the caution with which
Sugen Naidoo’s evidence should be approached. And we do so. In addition, a
number of inconsistencies in the evidence of Kisten were pointed out to us.
Kisten gave different accounts of the money she was paid and who persuaded
her to accept Gounder’s proposal. Kisten was also asked  as to how her
complaint could ever have sufficed for the purpose of charging Dr Sewram,
given its evident ambiguity. Indeed, the charge was dropped.

[113] But, as with the trial court, we do not consider the criticisms of the
evidence to be of such moment so as to discredit the central feature of Kisten’s
testimony: that she was paid to lay a false complaint of sexual abuse. And in
answering the crucial question as to who stood behind what Kisten did, here
too there is insufficient reason to deflect from the conclusion that this person
was the appellant. The appellant had reason to do so. There is a considerable
body of evidence that the false charge laid by Kisten formed part of an
orchestrated pattern of action taken by the appellant. And finally, the alternative
account of the appellant as to how the false complaint may have come about
falls to be rejected.

[114] For these reasons, we find no basis to interfere with the conviction of the
appellant in respect of count 2.

Count 3: defeating or obstructing the course of justice
[115] The trial court convicted the appellant of unlawfully and intentionally
obstructing the course of justice by laying a false complaint of assault with the
police against Dr Sewram, knowing that the complaint was false.

[116] Here too, it was common ground that the appellant laid the charge with
the police. The central issue was whether the assault had taken place. The
appellant gave evidence that he was assaulted by Dr Sewram. Sugen Naidoo

contended that it was a fabrication. The trial court found that the probabilities
favoured the assault being a fabrication.

[117] Two aspects of the evidence warrant careful consideration. First, unlike
other aspects of Sugen Naidoo’s testimony, where he remained steadfast as to
the appellant’s complicity in pursuing a campaign against Dr Sewram, here he
conceded under cross-examination that ‘the possibility exists that the assault
could have taken place – it could have’.

[118] Second, the witness statement of Mr Roshan Jayinath, a friend of the
appellant, admitted into evidence at trial by consent, stated that he was
travelling with the appellant in his car on 18 February 2012. The car was
stationary in the traffic, when, according to Jayinath, Dr Sewram jumped out of
his vehicle, which had drawn up alongside them, and slapped the appellant’s
face.

[119] In relation to this count, the appellant is entitled to the benefit of the
doubt. As a result, the appellant’s conviction cannot stand on count 3.

Count 4: defeating or obstructing the course of justice
[120] The appellant was charged with obstructing the course of justice, in that
he procured Sonali Sookraj to lay a false complaint of sexual assault against
Dr Sewram, knowing that the complaint was false. The trial court convicted the
appellant on this count. The trial court found that Sookraj’s evidence confirmed
Sugen Naidoo’s account that the appellant was behind the plan to target
Dr Sewram with a further complaint of sexual assault. The trial court was
satisfied that Sookraj had identified the appellant as being present on the day
when she agreed to lay the false complaint against Dr Sewram.

[121] Before this Court, counsel for the appellant submitted that the conviction
was predicated upon several misdirections. First, no evidence was led at trial
of Zaheer Khan, Sookraj’s step-father, who was said to have played a central
role in persuading Sookraj to lay the complaint. Reliance on the hearsay
evidence of Sookraj as to what Khan had said was inadmissible. Such

evidence, so it was argued, was not admissible under the exception to the
hearsay rule in respect of the executive statements of co-conspirators. Second,
the cross-examination of Sookraj established definitively that she was not in a
position to identify that the appellant was present, after Khan had persuaded
Sookraj to lay the false complaint. Third, the trial court placed too much reliance
on the respects in which Sookraj corroborated Sugen Naidoo’s evidence, but
discounted the contradictions in their respective testimonies.

[122] As with count 2, Sookraj did lay a false complaint against Dr Sewram.
The question is whether she did so at the instance of the appellant. Sookraj
gave evidence that on 21 August 2012 she was working at her step-father’s
tuck shop. Her step-father, Khan, came to her and asked her to lay a false
complaint of sexual assault against Dr Sewram. She agreed to do so. During
her evidence-in-chief, Sookraj said that her step-father then jumped into a
vehicle, a white double-cab, in which two other men were seated, one of whom
she identified as being the appellant. Khan returned, explained to Sookraj what
she was to do, and drove her to Dr Sewram’s surgery.

[123] The cross-examination of Sookraj, understandably, devoted much
attention to her identification of the appellant. The defence produced a dossier
of photographs, taken by the defence team, of the tuck shop and the area in
front of the tuck shop where the double-cab would have been parked. Sookraj
was asked to mark on one of the photographs where the double-cab had
parked. Defence counsel explored with Sookraj her line of sight from within the
tuck shop to the parked vehicle. Although the questioning sought to elicit from
Sookraj that her line of sight to the vehicle was compromised, Sookraj was
adamant that she had a clear view of the double-cab and its occupants.

[124] The appellant submitted before this Court that the photographs shown
to Sookraj prove that Sookraj could not have seen the face of the driver of the
double-cab. That is not so. Sookraj was asked to consider photographs 1, 4
and 5. Sookraj explained that the large windows at the front of the tuck shop
were open and she had an unimpeded view. It was put to Sookraj that there
was something of a downward inclination from the tuck shop to the road in

which the vehicle was parked, and that distance was 12 meters, as marked on
photograph 5. However, Mr Sangham, the appellant’s attorney who conducted
the cross-examination, had earlier stated that the distance was 4 meters.
Sookraj accepted that the double-cab was parked in the road outside of the
tuckshop, with the left side of the vehicle in her line of sight. She stated that the
window of the double-cab was rolled down, and that she had a clear view.

[125] A careful consideration of the evidence does not establish that Sookraj
could not have identified the appellant in the double-cab. There was no
inspection in loco to determine in fact what was visible from the tuck shop. The
distances depicted on the photographs were not verified. Indeed, the defence’s
own estimates of the distance from the tuck shop to the vehicle were at odds.
Sookraj was unshaken as to what she saw. She had an unimpeded view from
her standing position in the tuck shop to the double-cab, with its window open.
We can find no error on the part of the trial court in accepting Sookraj’s
identification of the appellant as being seated in the double-cab when Khan got
into the vehicle. It was common ground that the appellant owned a white
double-cab.

[126] This finding has important consequences. First, it entirely undermines
the appellant’s evidence that he had nothing to do with the false charge laid
against Dr Sewram. Second, it corroborates Sugen Naidoo’s evidence that
Khan was hired at the instance of the appellant, in the first place to assault
Dr Sewram, but, as the plan evolved, to persuade Sookraj to lay the false
complaint of sexual assault. Third, the identification of the appellant at the very
place and time when Khan persuaded Sookraj to go along with the false
complaint renders the appellant’s account unworthy of belief, both as to his lack
of involvement and his explanation that the complaint was initiated by
Sugen Naidoo so as to extort money from him.

[127] Nor is the appellant’s complaint that no reliance may be placed on what
Khan is reported to have said to Sookraj of any moment. There is no dispute
that Sookraj agreed to make the complaint upon the request of her step-father.
In any event, that Khan made the request is not hearsay evidence. That a

statement was made is admissible, it is the truth of the statement that is subject
to hearsay objection. And finally, the defence cross-examined Sookraj on what
Khan had said to her. The defence can hardly object to evidence as hearsay
that it has elicited.

[128] The appellant also raised points of contradiction between the evidence
of Sugen Naidoo and Sookraj. These contradictions reference when the false
complaint was laid and whether a meeting had taken place between the
appellant, Sugen Naidoo, Khan, Sookraj and her mother to discuss the making
of a false charge. Allowing for these contradictions does not negate the force
of what Sookraj’s evidence does corroborate. In particular, that Khan
persuaded Sookraj to lay the complaint, and that the appellant was involved in
having Khan do so. Why else was the appellant in the double-cab with
Sugen Naidoo and Khan on that very day?

[129] Nor are the internal inconsistencies in the evidence of Sugen Naidoo of
sufficient import to undermine the central account given by him, that is, that the
plan to target Dr Sewram with the false complaint of sexual assault was
undertaken with the full involvement of the appellant, so as to satisfy his desire
for revenge. The issues raised in cross-examination, as to when Sugen Naidoo
first met Khan, and how much Khan was paid, do not cast serious doubt on the
convergence of evidence that explains how Khan came to recruit his step-
daughter in a plan to target Dr Sewram, and with what end in mind.

[130] For these reasons, we do not consider that the conviction of the
appellant on this count was incorrect, and the appeal must fail.

Count 5: assault with intent to do grievous bodily harm
[131]  The State charged the appellant with assault with intent to do grievous
bodily harm. The basis of this charge was that the appellant hired assailants to
shoot Dr Sewram with a high-powered paintball gun purchased by the
appellant. On 24 October 2012, Dr Sewram was shot several times with this
gun, using solid projectiles, and suffered certain injuries.

[132] The trial court gave detailed consideration to the evidence of Sugen
Naidoo. Sugen Naidoo testified that the plan to shoot Dr Sewram with a
paintball gun was conceived with the appellant. Sergeant Ricky Naidoo and
Sergeant Maharaj were recruited to carry out the assault. Sugen Naidoo
explained how he, the appellant, Ricky Naidoo and Maharaj undertook an
expedition to buy the paintball gun and the paintballs. Ricky Naidoo and
Maharaj then shot Dr Sewram. Sugen Naidoo was present at the police station,
shortly after the assault, when Dr Sewram entered, ‘totally disorientated and
dazed and had red marks on his face and neck’. Dr Sewram laid a charge
against the appellant. The trial court found that, although Sugen Naidoo was a
single witness, upon a conspectus of the evidence, and in the light of the
probabilities, the appellant was guilty of having orchestrated the assault.

[133] There is no doubt that Dr Sewram was assaulted on 24 October 2012.
Sugen Naidoo implicated Ricky Naidoo, Maharaj and the appellant in the
assault. There are two pieces of evidence, which the appellant submitted
introduced a reasonable doubt, that should have been heeded by the trial court.

[134] First, the appellant’s cell phone records reflected that on the day that
Sugen Naidoo said that the appellant joined the expedition to buy the paintball
gun in Pinetown, the appellant never left Pietermaritzburg. This evidence casts
doubt on the testimony of Sugen Naidoo as a single accomplice witness.

[135] Second, Ricky Naidoo and Maharaj were not called to give evidence at
the trial. Their witness statements were handed in by consent at the trial. These
statements not only denied any involvement in the assault upon Dr Sewram,
but recanted their earlier statements, which they claimed were obtained under
duress.

[136] The witness statements of Ricky Naidoo and Maharaj were admitted into
evidence at trial. There are many questions that arise from these statements.
But their denial of complicity leaves the assault of Dr Sewram without an
assailant. The appellant has an alibi for the expedition to purchase the paintball

gun. This evidence accordingly introduces a reasonable doubt as to the
appellant’s guilt. He is entitled to the benefit of that doubt.

[137] In the result, we find that the appellant’s conviction cannot stand in
respect of count 5, the appeal succeeds, and we hold that he is acquitted in
respect of count 5.

Conclusion on the merits
[138] Our analysis yields the following result. The appeal succeeds in respect
of the appellant’s convictions on counts 3 and 5. The appellant is entitled to an
acquittal on these counts. The appeal fails on the remaining counts, that is,
counts 1, 2, and 4. On count 6, the appellant’s conviction on the charge of
conspiracy is set aside and the appellant is guilty of the alternative charge of
incitement to murder.

[139] In coming to this conclusion, we return to the overarching question we
posed at the outset: was the pattern of events directed against Dr Sewram the
result of the appellant’s orchestration, or does some other agency account for
these sequential and interconnected outcomes?

[140] In our view, the evidence provides overwhelming proof that it was the
appellant who sought and, in many instances brought about, the actions against
Dr Sewram that culminated in his murder. First, numbers of witnesses
independently confirmed the appellant’s obsessive desire to take revenge upon
Dr Sewram. Second, apart from the testimony of Sugen Naidoo, which required
the application of the cautionary rules, the evidence of Gounder, Emersleben,
Shaik-Cassim, and Sithebe and Sookraj directly implicated the appellant in
securing that hostile actions be taken against Dr Sewram. Third, the call placed
by Treasurer to the appellant and the chilling words ‘the job was completed’
incriminated the appellant in the murder of Dr Sewram. This was the final result
of the co-ordinated actions taken by the appellant against Dr Sewram. That
Sugen Naidoo testified to the appellant’s discussions with him as to Treasurer’s
suitability to murder Dr Sewram, well in advance of the murder, provides further
proof of the appellant’s complicity in the murder. Fourth, as we have found, the

appellant’s account as to what brought about the serial hostilities against
Dr Sewram entirely lacks plausibility.

[141] Taken together, the evidence shows beyond reasonable doubt that the
overarching question we posed must be answered thus: it was indeed the
appellant who was responsible for the pattern of actions taken against
Dr Sewram. This answer provides further support for the convictions that have
been sustained on appeal.

Sentence
[142] What remains for consideration are the sentences imposed on the
appellant by the trial court. The well-established triad,5 namely the criminal, the
crime and the interests of the community, are relevant in determining an
appropriate sentence.

[143] Section 51(1) of the Criminal Law Amendment Act 105 of 1997 (CLAA)
prescribes a minimum sentence on count 1 of life imprisonment. However,
s 51(3) of the CLAA provides that a lesser sentence may be imposed if the court
is satisfied that substantial and compelling circumstances exist. The trial court
referred to S v Vilakazi [2008] ZASCA 87; 2009 (1) SACR 552 (SCA), at
para 15, where this Court dealt with the proper approach to determining
whether there are substantial and compelling circumstances that warrant a
deviation from the minimum sentence prescribed by the CLAA. This Court said
that it is incumbent upon a court in every case, before it imposes a prescribed
sentence, to assess, upon a consideration of all the circumstances of the
particular case, whether the prescribed sentence is proportionate to the
particular offence. In addition, in ultimately deciding whether substantial and
compelling factors exist, one must look at the mitigating and aggravating
factors, and consider the cumulative effect thereof.

[144] The trial court found that there were substantial and compelling
circumstances and imposed a sentence of 25 years’ imprisonment on count 1.

5 S v Zinn 1969 (2) SA 537 (A) at 537-540G.

On counts 2, 3 and 5, the appellant was sentenced to 18 months’ imprisonment;
on count 4, the appellant was sentenced to 2 years’ imprisonment; and on count
6, he was sentenced to 5 years’ imprisonment. Counts 2, 3, 4 and 5 were
ordered to run concurrently with count 1. The appellant was thus sentenced to
an effective 30 years’ imprisonment.

[145] As mentioned earlier in the judgment on the merits, this Court has
acquitted the appellant on counts 3 (defeating or obstructing the course of
justice; and on count 5 (assault with intent to cause grievous bodily harm). On
count 6, this Court has set aside the conviction of conspiracy to commit murder
and the appellant has been found guilty of the alternative charge of incitement
to murder Dr Sewram. It is necessary to consider the sentences imposed by
the court a quo on the remainder of the counts, namely counts 1, 2, 4 and 6.

[146] In considering sentencing, this Court’s powers are limited. This Court
cannot usurp the sentencing discretion of the trial court. In S v Bogaards [2012]
ZACC 23; 2012 BCLR 1261 (CC), the Constitutional Court held:
‘Ordinarily, sentencing is within the discretion of the trial court. An appellate court’s
power to interfere with sentences imposed by courts below is circumscribed. It can
only do so where there has been an irregularity that results in a failure of justice; the
court below misdirected itself to such an extent that its decision on sentence is vitiated;
or the sentence is so disproportionate or shocking that no reasonable court could have
imposed it. A court of appeal can also impose a different sentence when it sets aside
a conviction in relation to one charge and convicts the accused of another.’

[147] The main submissions put forward on behalf of the appellant are that the
sentence of 25 years’ imprisonment is shockingly inappropriate, and that the
period the appellant has served, namely 18 months of that sentence while
awaiting this appeal, should be taken into account.

[148] The appellant did not testify in mitigation of sentence in the trial court,
but through his legal representatives made submissions which the court
considered. The trial court considered the personal circumstances of the
appellant in great detail, his upbringing, and his family history. To have a
complete and balanced picture, the trial court also took into account the reports

of expert witnesses, and importantly the impact and effect of the crimes on the
deceased’s family, the nature of the crime, the seriousness of the offences,
their cumulative effect and the interests of society, including the possibility of
rehabilitation. Accordingly, the trial court took the following into account. The
appellant was 42 years of age at the time of sentencing and he was a first
offender. He was a useful member of society and an accomplished
businessman. He had grown up in a staunchly conservative Hindu family. The
appellant suffered from poor health, and was diagnosed with hypertension and
a non-occlusive coronary disease. He also suffered from depression. He had
been married for eleven years until the marriage between him and his wife
ended in divorce. Even though, in terms of the divorce agreement of settlement,
Mr and Mrs Soni were declared co-holders of parental rights and responsibilities
in regard to the two children born of the marriage, the divorce was settled giving
recognition to the appellant being the primary caregiver of his daughter. Both
minor children were financially depended on him. He was also a community
orientated person contributing to charities and feeding schemes.

[149] In deciding on an appropriate sentence on count 1, it is important to bear
in mind that the appellant persisted on exacting revenge on the deceased and
ultimately conspired with and embarked on a campaign to kill the deceased,
and which resulted in the cold-blooded murder of the deceased. Never once
did he shrink back from a campaign involving a number of schemes, and
ultimately procured the murder of the deceased through the hands of hired
assassins. He embarked on this conduct over a period of time until he avenged
the deceased’s alleged affair with his wife, using corrupt policemen to do his
bidding, and using money as a means to an end.

[150] After due consideration of all the facts and circumstances relevant to
sentencing, in our view the sentence of 25 years’ imprisonment imposed on
count 1 by the trial court for the murder of Dr Sewram does not appear to be
shockingly inappropriate. It is not disproportionate to the seriousness of the
crime committed by the appellant. It is an appropriate and salutary sentence
which is balanced and fair, and which also takes into account the moral

indignation of the community. Consequently we find no reason to interfere with
the sentence on count 1.

[151] The sentences imposed on the appellant with respect to counts 2 and 4
(defeating the course of justice) of 18 months’ and 2 years’ imprisonment
respectively, in the circumstances of this case, do not appear to be excessive.
On both counts a false complaint was laid against Dr Sewram at the instance
of the appellant, in order to satisfy the appellant’s desire to exact revenge on
Dr Sewram. Thus, the sentence imposed by the court a quo on counts 2 and 4
appear to be appropriate and justified.

[152] In regard to count 6, this Court has found that the appellant is not guilty
of the crime of conspiracy to kill Dr Sewram, but is guilty of the alternative
charge of the incitement to murder Dr Sewram. The trial court imposed a
sentence of 5 years’ imprisonment on count 6. In the circumstances of this
case, the appellant clearly sought to influence Sithebe to kill Dr Sewram. He
offered Sithebe a large reward and pointed out the two surgeries of Dr Sewram.
The conviction of the appellant on the alternate charge of incitement to murder
Dr Sewram is no less grave than the trial court’s conviction of the appellant on
the conspiracy to murder Dr Sewram. Consequently, we consider a sentence
of 5 years’ imprisonment to be appropriate in respect of the conviction for the
incitement to commit murder.

[153] Furthermore, in our view, given the circumstances under which the
offences on counts 2, 4 and 6 occurred, they are all closely linked to count 1.
All these offences form part of the scheme which the appellant embarked upon,
carefully planned, and which ultimately culminated in the commission of the
offence on count 1. In the light of the cumulative effect of the sentences
imposed, the sentences on counts 2, 4 and 6 are to run concurrently with the
sentence on count 1.

[154] It has been submitted on behalf of the appellant that this Court should
take into account the period of imprisonment served by the appellant after his
conviction and sentence by the trial court. The appellant was sentenced by the

trial court in October 2018. The relevant records in the Registrar’s office indicate
that the appellant was released on bail pending appeal by this court on 19
March 2020. The appellant has thus served approximately 17 months of the
sentence imposed on him before his release on bail pending the outcome of
the appeal. We are of the view that in such circumstances, it would be just and
equitable for the appellant to receive credit for the period already served, and
that this be taken into account in determining the effective sentence. In doing
so, we are mindful of the loss that the deceased’s family have suffered.

[155] The result is that the appellant is sentenced to an effective 23 years and
7 month’s imprisonment, which period will run from the date of the further
imprisonment of the appellant pursuant to this order.

[156]  In the result, the following order is made: The appeal against convictions
and sentences is upheld in part and dismissed in part, as follows:
1.
The appeal against convictions and sentences is upheld in part and
dismissed in part, as follows:
1.1 The appeal against the conviction and sentence on count 1 is dismissed;
1.2 The appeal against the convictions and sentences on counts 2 and 4 is
dismissed;
1.3 The appeal against the convictions and sentences on counts 3 and 5 is
upheld;
1.4 The appeal against the conviction on count 6 of conspiracy to murder is
upheld, with the conviction substituted with the alternative count, namely,
incitement to commit murder;
1.5 The appeal against sentence on count 6 is upheld to the extent reflected
in the substituted order that appears hereunder;
1.6 The effective sentence is reduced to the extent reflected in the substituted
order.
2.
The order of the court below is substituted as follows:
‘(a) In respect of count 1: Murder read with s 51(1) and Part 1 of Schedule 2
of the Criminal Law Amendment Act 105 of 1997, the accused is found guilty;
(b)  In respect of count 2: Defeating or obstructing the course of justice, the
accused is found guilty;

(c)  In respect of count 3: Defeating or obstructing the course of justice, the
accused is acquitted;
(d)  In respect of count 4: Defeating or obstructing the course of justice, the
accused is found guilty;
(e)  In respect of count 5: Assault with intent to do grievous bodily harm, the
accused is acquitted;
(f)
In respect of count 6: Conspiracy to commit murder, alternatively,
incitement to murder, the accused is found guilty of incitement to murder;
(g)  In respect of count 1, the accused is sentenced to 25 years’ imprisonment;
(h)  In respect of count 2, the accused is sentenced to 18 months’
imprisonment;
(i)
In respect of count 4, the accused is sentenced to 2 years’ imprisonment;
(j)
In respect of count 6, the accused is sentenced to 5 years’ imprisonment;
(k)  The sentences imposed on counts 2, 4 and 6 are to run concurrently with
the sentence on count 1. The accused is sentenced to an effective 23 years’
and 7 months’ imprisonment.’
3.
The sentence of 23 years and 7 months’ imprisonment referred to in (k)
above will run from the date of the further imprisonment of the appellant
pursuant to this order.’
4.
The National Commissioner for Correctional Services is directed to ensure
that a social worker in the employ of the Department for Correctional Services
visits the children of the accused, Mr Soni, regularly during his incarceration,
and submits reports to the office of the National Commissioner as to whether
the children are in need of care and protection as envisaged in section 150 of
the Children’s Act 38 of 2005 and, if so, to take the steps required by that
provision.
5.
The Department of Correctional Services is to give consideration to the
recommendation in the report of Floss Mitchell relating to the manner in which
contact visits between the accused and the minor children are to take place,
and, where possible, to facilitate the assistance of a social worker during such
visits.
6.
The accused is declared unfit to be licenced for a firearm in terms of the
provisions of the Firearms Control Act 60 of 2000.

________________________
H SALDULKER
JUDGE OF APPEAL

________________________
D UNTERHALTER
ACTING JUDGE OF APPEAL

Appearances:

For appellant:
M Hellens SC (with him J E Howse SC)
Instructed by:
Subash Maikoo & Associates Inc, Pietermaritzburg

Honey Attorneys, Bloemfontein

For respondent:
J du Toit
Instructed by:
Director of Public Prosecutions, Pietermaritzburg

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:
5 May 2021
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
Rajivee Soni v The State (465/2019) [2021] ZASCA 57 (5 May 2021)

Today, the Supreme Court of Appeal (SCA) upheld in part and dismissed in part an appeal
against convictions and sentences by the appellant, Mr Rajivee Soni, to the extent reflected
in the substituted order of the SCA for that of the KwaZulu-Natal Division of the High Court,
Pietermaritzburg (the trail court).

On 19 September 2018, Mr Rajivee Soni was convicted on all six counts charged, namely on
count 1, the murder of Dr Bhavish Sewram; on counts 2, 3, and 4, for defeating or obstructing
the course of justice; on count 5, for assault with intent to cause grievous bodily harm; and on
count 6, for contravening s 18(2)(a) of the Riotous Assemblies Act 17 of 1956 (conspiracy to
commit murder). On 26 October 2018, Soni was consequently sentenced to an effective 30
years’ imprisonment. On 11 April 2019, the trial court granted Soni leave to appeal to the SCA
all the convictions and the sentences imposed. On 19 March 2020, the SCA granted Soni bail
pending the outcome of the appeal.

The facts of the matter were as follows: On 13 May 2013, Dr Sewram was shot and killed
outside his surgery in Raisethorpe, Pietermaritzburg. Brian Treasurer, Sabelo Advocate
Dlamini and Mfaniseni Wiseman Nxumalo were convicted of Dr Sewram’s murder before
Soni’s trial had commenced. It was common ground that Dr Sewram was assaulted, arrested
and charged on the basis of false accusations of sexual assault, and was ultimately murdered
by assassins acting for reward. The overarching issue to be determined was whether Soni
orchestrated these actions against Dr Sewram to seek revenge for Dr Sewram allegedly

having an affair with Soni’s wife, or whether there was an alternative explanation that was
reasonably possibly true.

The SCA found that the evidence provided overwhelming proof that it was Soni who sought
and, in many instances brought about, the actions against Dr Sewram that culminated in his
murder. This was on the basis that, firstly, a number of witnesses independently confirmed
Soni’s obsessive desire to take revenge upon Dr Sewram; secondly, testimony evidence
directly implicated Soni in securing that hostile actions be taken against Dr Sewram; thirdly,
the cell phone call placed by Treasurer to Soni and the words ‘the job was completed’
incriminated Soni in the murder of Dr Sewram; and fourthly  Soni’s account as to what brought
about the serial hostilities against Dr Sewram entirely lacked plausibility, and was not
reasonably possibly true.

In the result, the SCA held that the appeal failed on counts 1, 2, and 4. Murder and two of the
charges for defeating or obstructing the course of justice, respectively. On count 6, Soni’s
conviction on the charge of conspiracy was set aside and Soni was instead found guilty of the
alternative charge of incitement to murder. The SCA held further that the appeal succeeded
in respect of Soni’s convictions on counts 3 and 5. He was thus entitled to an acquittal on
these counts. These were in respect of one of the charges for defeating or obstructing the
course of justice, and for assault with intent to cause grievous bodily harm.

In respect of sentence, the SCA considered the sentences imposed by the trail court on the
remainder of the counts for which Soni was not acquitted, namely counts 1, 2, 4 and 6. With
regard to count 1, for murder, the SCA found that the sentence of 25 years’ imprisonment
imposed by the trial court was not shockingly inappropriate. Soni had persisted on exacting
revenge on Dr Sewram and ultimately conspired with and embarked on a campaign to kill him,
and which resulted in the cold-blooded murder of Dr Sewram. Thus, the SCA held that 25
years’ imprisonment on count 1 was an appropriate sentence in the totality of the
circumstances.

The SCA found that the sentences imposed by the trial court on counts 2 and 4 (defeating the
course of justice), in the circumstances of this case, were not excessive. On both counts a
false complaint was laid against Dr Sewram at the instance of Soni, in order to satisfy Soni’s
desire to exact revenge on Dr Sewram. Thus, the sentences of 18 months’ and 2 years’
imprisonment, respectively, were appropriate and justified.

In regard to count 6, the SCA found that the conviction of Soni on the alternative charge of
incitement to murder Dr Sewram was no less grave than the trial court’s conviction of Soni on
the conspiracy to murder Dr Sewram. The trial court imposed a sentence of 5 years’
imprisonment on count 6. Accordingly, the SCA held that a sentence of 5 years’ imprisonment
was warranted in respect of the conviction for the incitement to commit murder.

The SCA found further that, given the circumstances under which the offences on counts 2, 4
and 6 had occurred, they were all closely linked to count 1. All these offences formed part of
the scheme which Soni embarked upon, carefully planned, and which ultimately culminated in
the commission of the offence on count 1. Thus, the SCA held that, in the light of the
cumulative effect of the sentences imposed, the sentences on counts 2, 4 and 6 were to run
concurrently with the sentence on count 1. However, the SCA found that it would be just and
equitable for Soni to receive credit for the period of 17 months that he had already served
before his release on bail pending the outcome of the appeal. The result was an effective
sentence to 23 years and 7 months’ imprisonment.

~~~~ends~~~~