S v Majola and Others (98/2013) [2014] ZAGPJHC 421 (30 October 2014)

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[2014] ZAGPJHC 421
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S v Majola and Others (98/2013) [2014] ZAGPJHC 421 (30 October 2014)

REPUBLIC
OF SOUTH AFRICA
GAUTENG
HIGH COURT, JOHANNESBURG LOCAL DIVISION
CASE NO: 98/2013
DPP
REF NO: JPV 017/2013
DATE:
30 OCTOBER 2014
In the matter
between:
THE STATE
And
MAJOLA,
ANTHONY
........................................................................................................
ACCUSED
1
KHUMALO,
NELSON
.......................................................................................................
ACCUSED
2
MABENA,
BONGANI
........................................................................................................
ACCUSED
3
JUDGMENT
Introduction
1.
In
this matter the Court was ably assisted by two learned assessors, Mr
Norman Mtsweni and Ms Letitia Kelly. The judgment that follows
is a
unanimous decision of the Court.
2.
On
the 3rd of October 2012, at or about 13h45, the Post Office in the
Flora Centre in Florida (the Centre) was robbed of cash in
the amount
of approximately R40 000.00. The perpetrators, who were many, carried
unlicensed and prohibited firearms and ammunition.
During the course
of the robbery the firearms carried by some of the perpetrators were
discharged. After conducting the robbery,
and as they were exiting
the Centre, one of them discharged the firearm he was carrying. After
exiting they drove off in two vehicles,
a white bakkie (the bakkie)
and a Quantum Kombi (the Quantum). The driver of the bakkie was
involved in a shoot-out with a policeman
named Gabri Johan Fouche.
The policeman (the deceased) was shot by the driver of the bakkie and
died of wounds he sustained. The
driver of the bakkie was himself
shot in the back of his head by the deceased. He was immediately
accosted and arrested.
3.
In
consequence of the events described above each of the accused stand
indicted on the following charges:
“
Count
1
Murder
read with s 51(1) of Act 105 of 1997.
Count
2
Robbery
with aggravating circumstances as defined in s 1 of Act 51 of 1977,
read with s 51(2) of Act 105 of 1997.
Count
3
Possession
of a prohibited firearm – in contravention of Section
4(1)(a)and Section 4(1)(f)(i) and (iv) read with the provisions
of
Section 1, 103, 117, 120(1)(a) and Section 121, read with Schedule 4
and Section 151 of the
Firearms Control Act, 60 of 2000
, and further
read with
Section 250
of the
Criminal Procedure Act, 51 of 1977
.
Alternatively:
Possession of an unlicensed firearm - in contravention of
Section 3
read with the provisions of
Section 1
,
103
,
117
,
120
(1)(a) and
Section 121
, read with Schedule 4 and
Section 151
of the
Firearms
Control Act, 60 of 2000
, and further read with
Section 250
of the
Criminal Procedure Act, 51 of 1977
.
Count
4
Possession
of Ammunition – in contravention of
Section 90
read with
Sections 1
,
103
,
117
,
120
(1)(a) and
Section 121
, read with Schedule 4
and
Section 151
of the
Firearms Control Act, 60 of 2000
, and further
read with
Section 250
of the
Criminal Procedure Act, 51 of 1977
.
Count
5
Possession
of Unlicensed Firearms – in contravention of
Section 3
read
with the provisions of
Section 1
,
103
,
117
,
120
(1)(a) and
Section
121
, read with Schedule 4 and
Section 151
of the
Firearms Control Act
60 of 2000
, and further read with
Section 250
of the
Criminal
Procedure Act, 51 of 1977
.”
4.
The
accused, who were all legally represented, pleaded not guilty to all
five counts.  They were appropriately informed of
the
applicability of the prescribed minimum sentence in terms of s
51(1)
of Act, 105 of 1997.
All
three accused chose not to disclose their defence. Their approach is
countenanced by s 115 of the Criminal Procedure Act, 51
of 1977 (“the
CPA”). However, at the commencement of the trial, they each
made certain admissions in terms of Section
220 of the CPA. The
admissions were recorded in writing. They were:
“
1
That the deceased is the person mentioned in the indictment, to
wit, Gabri Johan Fouche.
2 That the
deceased died on 03 October 2012 as a result of a gunshot wound of
the abdomen and chest he sustained on or about
3 October 2012 at
or near Beacon Road, Florida, in the district of Johannesburg.
3 That the
body of the deceased suffered no further injuries from the time at
which the wound was inflicted on 3 October 2012
until a post
mortem examination was conducted thereupon.
4 Dr Gina
Marie Rowe conducted a post mortem on the body of the deceased on
4 October 2012 and accurately recorded her findings
on Exhibit
“B”.
5 The
correctness of the facts and findings of the post-mortem
examination as recorded on Exhibit “B” by Dr Gina

Marie Rowe.
6 The
correctness of the photographs of the scene, the key and notes
thereto as reflected in Exhibit “C”.
7 That the firearms,
cartridges, bullets, spent bullets and projectiles recovered at
the scenes were correctly recovered,
packed, sealed and were not
tampered with until sent to the Ballistics Unit of the Forensic
Science Laboratory for analysis.
8 The
correctness of the ballistics report by SematlaGloudiaMatjela as
reflected in Exhibit “D”.
9 The
correctness of the ballistics report by Jean KarelNieuwenhuys as
reflected in Exhibit “E”.
10 That an
armed robbery occurred at the Flora Centre post office at
approximately 13:45 on 3 October 2012.
11
That
the deceased was an on-duty police officer at the time of the
shooting incident.
12
All
three accused did not have licences to possess firearms.
”
5.
During
the course of the trial, three trials within a trial were held. This
was necessitated by the fact that each of the accused
had made
certain statements while in custody, which the State applied, in
terms of s 219A of the CPA, to have admitted as evidence
against
them. Each of them opposed the State’s application.
The first trial within a trial
Dlamini’s evidence
6.
On
4 October 2012 the investigating officer in this case, Constable
Dlamini (Dlamini), accompanied by Constable Derick Masonto (Masonto),

visited the Helen Joseph Hospital (Helen Joseph) in search of Accused
1, who had been admitted there the previous day. Upon their
arrival
they were informed that Accused 1 was transferred to the Leratong
Hospital (Leratong), after being stabilised at Helen
Joseph. They
proceeded to Leratong where they located Accused 1 in a ward sitting
on the side of a bed with one hand cuffed to
the post of the bed.
They received permission from the nurses in charge of the ward to
interview Accused 1. The nurses indicated
that Accused 1 was capable
of conversing with them and that they saw no risk to Accused 1’s
health if he conversed with them.
The policemen found Accused 1 to be
conscious. They introduced themselves to Accused 1, informed him of
his rights and told him
that they were there to conduct an interview
with him. The interview was conducted by using the official South
African Police Services
Form titled “
Statement
Regarding Interview with Suspect
”
(SAPS 3M(m) Form).
7.
The
SAPS 3M(m) Form is a detailed document which contains specific
instructions to the officer interviewing a suspect. It is designed
to
ensure that the officer pays particular attention to the rights of
the suspect and that he conducts the interview in a systematic

fashion. Thus, for example, paragraph 3 of the Form indicates to the
suspect that during the course of the interview s/he is not
obliged
to make any statement or to answer any questions and that any
statement made or answer given may be used as evidence in
a court of
law against the suspect. It further informs the suspect that s/he is
entitled to consult with a legal practitioner.
The paragraph
concludes with a sentence which records that the suspect understood
the rights s/he was informed of, as well as the
purpose of the
interview.
8.
According
to Dlamini, he faithfully adhered to the contents of the SAPS 3M(m)
Form when conducting the interview. Accused 1did not
dispute that the
SAPS 3M(m) Form was used as the basis for the interview.
9.
At
the commencement of the interview Dlamini informed Accused 1 that he
would be asking Accused 1 certain questions, which Accused
1 was not
obliged to answer. Accused 1 responded by stating that he understood
what Dlamini had said and that he had no difficulty
in answering any
questions. He asked Accused 1 if he wanted his legal representative
to be present while the interview was being
conducted, to which
Accused 1 replied that he did not want one to be present, and that he
had no difficulty in answering any questions
Dlamini had for him.
Dlamini then asked him questions and documented his answers on the
SAPS 3M(m) Form. The interview was conducted
in Isi-Zulu but the
answers were recorded in English. At the conclusion of the interview,
Dlamini read the answers back to Accused
1, who confirmed that they
correctly reflected what he had said. Dlamini then signed the
document at the end and initialled each
relevant paragraph. He asked
Accused 1 to do the same. Accused 1 agreed and did so. Masonto
witnessed the entire interview as well
as the signing of the document
by Dlaimini and Accused 1. He, accordingly, signed the document as a
witness.
10.
Thus,
according to Dlamini, Accused 1 was fully cognisant
[1]
at the
time of the interview and participated therein with complete free
will after having been apprised of his rights.
Masonto’s evidence
11.
Masonto
confirmed the testimony of Dlamini, which is that they were duly
authorised by the medical personnel at Leratong who were
in charge of
Accused 1 to conduct the interview with Accused 1. He was
particularly adamant in his testimony that during the interview

Accused 1 was fully conscious, of clear mind, responsive and gave the
statement freely and voluntarily after having been informed
of his
constitutional rights.
Documentary evidence
12.
Before
closing its case, the State presented documentary evidence consisting
of the notes of the hospital regarding the health and
treatment of
Accused 1 at the time of his admission on 4 October 2012. Accused 1
did not contest the authenticity or veracity of
the contents of these
notes. Nor did he oppose the State’s request that they be
admitted as evidence. The notes show that
Accused 1 was taken to the
Helen Joseph on 03 October 2012, where he received some treatment and
was later transferred to Leratong
for further treatment. The notes
regarding his admission at Helen Joseph read:
“
04/10/12:
16h20: Brought stich (sic) room accompanied by policemen, wheeled by
stretcher, on room air, conscious with history of
gun shot on
head.....”
“
04/10/2012:
16H50: Seen and examined by doctor, admitted Ward 10 for monitoring
and further management.”
[2]
The notes regarding his
admission and his condition upon his admission at Leratong read:
“
04/10/2012:
20h00: Male suspects (sic) brought in by police officers as transfer
back (sic) from Helen Joseph Hospital. Suspect
was brought in on
wheelchair with no clothes on. He was covered with a hospital
sheet.
History:
Suspect was shot by police on the head after being involved in a
robbery.
Assessment:
patient is conscious and able to talk, responds well to commands,
well orientated, breathing at (sic) room air, he is
able to walk
without assistance, a dressing has been applied from casualty, no
bleeding or oozing noted, entry wound noted, no
exit wound, vital
signs done and recorded as BP: 116/65, Pulse : 81, Temperature: 36C,
Resparatulle: 22.
”
[3]
(Emphasis
added).
Accused 1’s evidence
13.
In
a quest to demonstrate that the statement recorded by Dlamini and
witnessed by Masonto was not made by him, Accused 1 testified.
He
presented two versions. The first is that he is sure that upon being
shot in the afternoon of 3 October 2012 he lost consciousness
and
regained consciousness only on 5 October 2012 when he found himself
handcuffed to a bed in a ward in the Leratong Hospital.
He does not
recall being admitted to the Helen Joseph Hospital, as he was
unconscious at the time. He does recall regaining consciousness
while
being treated at the Leratong Hospital. On this version, he went on
to say that he did not meet Dlamini or Masonto on 4 October
2012. Of
that he is certain and, therefore, he did not give a statement to any
of them on 4 October 2012. The second version is
that he has no
recollection of making any statement. When asked to explain the
apparent contradictions between the two versions
he turned the focus
onto the issue of the particular statement the State alleged he
voluntarily gave to Dlamini in Masonto’s
presence. He claimed
that, that particular statement was not made by him. This became his
third version: the first being that he
made no statement, the second
he has no recollection of ever making a statement, and the third, the
particular statement the State
relies upon is not the one made by
him.  His versions opened the door for the State to
cross-examine on the contents of the
statement, which it took full
advantage of.
14.
Before
relating what transpired during the cross-examination, it is
necessary to note that his first version is contradicted by
the
hospital records. According to him, he was unconscious from the
afternoon of 3 October 2012 until the morning of 5 October
2012. As
he did not question the veracity of the notes, it has to be accepted
that they correctly reflect the state of his health
at the time.
According to these notes he was conscious, fully cognisant of his
surroundings and fully capable of engaging in meaningful

conversation.
15.
He
then faced cross-examination regarding the contents of the statement
he supposedly gave to Dlamini. The cross-examination was
lengthy, at
times repetitive but intensive. He was asked to explain whether some
of the contents of the statement were correct,
such as his personal
details. He agreed that some were but claimed that others were not,
for example he was adamant that the cell
phone number recorded on the
statement did not belong to him, and that the address recorded there
as his residential address was
not correct. He also denied that a
cell phone was found on his person at the time of his arrest. He was
asked if he could furnish
any explanation as to how the hospital
staff came to record his name correctly on the admission form. He
replied that he was unable
to do so. He was shown the statement and
asked to explain why the State would claim that he made it, when it
contained nothing
that incriminated him. Again, he said he could not
explain why that was so. He was asked to explain how his name came to
be recorded
by the staff at Helen Joseph Hospital. He said that maybe
he gave it to them. When it was pointed out to him that this
contradicts
his claim that he has no recollection of being admitted
there, he coyly responded with silence.
Conclusion on the statement of Accused 1
16.
There
is no doubt in my mind that Accused 1 was conscious when he gave a
statement to Dlamini. The evidence of Dlamini and Masonto
that, after
locating Accused 1 in the ward housing prisoners, they found Accused
1 to be conscious: that Dlamini informed him of
his status, the
reason for their visit (which was to interview him) and that he
(Accused 1) had a right not to answer any of the
questions that were
posed;  that he was also informed of his right not to say
anything, as well as the right to consult with
a legal practitioner,
and once informed of these rights Accused 1 clearly and unambiguously
indicated a willingness to answer all
questions put to him, has to be
accepted as correctly reflecting what occurred at Leratong. Accused 1
claimed that he was not conscious
at the time that Dlamini and
Masonto visited Leratong, alternatively that he had no recollection
of ever meeting them on 4 October
2012, further alternatively, that
he did not make the particular statement the State relies upon, but
he did not claim that the
statement recorded by Dlamini was taken
from him under duress. Thus Dlamini’s evidence that it was
freely and voluntarily
given remains unchallenged and has to be
accepted.
17.
For
these reasons I come to the conclusion that the State has proven
beyond a reasonable doubt that the statement was made by Accused
1,
and that it was freely and voluntarily made. It follows then that the
application of the State to have it admitted as evidence
has to be
granted.
The second trial within a trial
18.
Accused
2, too, made a statement while in custody. His statement was made on
the morning after his arrest. He was arrested during
the evening of
12 November 2012. The statement was recorded by Dlamini who holds the
rank of a Constable. As such he is not a peace
officer.
[4]
It is
the State’s case that this statement is an admission. Accused
2, on the contrary, contends that it is a confession.
The distinction
is crucial as it is common cause that if the statement is a
confession it is inadmissible. This is because it was
taken down by
Dlamini, who by virtue of his status (Constable), is disqualified
from recording a confession. Under these circumstances,
it would be
most convenient to first decide whether it qualifies as a confession
or an admission, before dealing with the other
issues concerning its
admissibility.
19.
A
confession, it is trite, is “
an
unequivocal acknowledgment of guilt, the equivalent of a plea of
guilty before a court of law
.”
[5]
However,
“
(t)he
admission by an accused of facts which, when carefully scrutinised
and, may be, laboriously pieced together, may lead to the
inference
of guilt on the part of the accused, however, consonant that may be
with the meaning of the term “confession”
in the
abstract, is not a confession within the meaning of the Act.
”
[6]
20.
The
definition implies that there should be no legal defence (to the
charge or to any competent verdict) available to the accused:
the
court should be able to convict him solely on the basis of the
confession. It follows then that the accused must, in the statement,

admit, unequivocally, to all the elements of the charge –
including
mens
rea
.
21.
The
statement should be objectively assessed to determine whether it
qualifies as a confession or not.
[7]
22.
Accused
2 contended that objectively assessed, the statement would allow for
his conviction on the charge of robbery, or on a competent
charge of
accessory after the fact, as it contains an admission to all the
elements of the two offences. Thus, he maintains, it
is a confession
and should be excluded as it was not taken by a peace officer. In
contrast, the State submitted that the statement
is an admission as
Accused 2 dissociated himself from the robbery. The full statement
reads:
“
I
understand the allegation against me.
I
received a call from Majola on the 2012-10-03 at about 1200
(sic)
.
He told me that he want me to borrow him a bakkie he want to commit
robbery in Florida complex on the same day.
It
was me, Majola, Mlenzana and Mshana in a Quantum. Mlenzana knows the
driver. Majola was a driver of my bakkie.Registration BB35SJ
GP.
Majola
left us went inside the complex to check the place and he came back
and told Mshana and Mlenzanato go and they left us on
the Quantum.
Everything was in order. I was with the driver of the Quantum. Majola
was in my bakkie (Toyota Hilux).
After
some few minutes Mshana and Mlenzana came back and join me and driver
of the Quantum. They were carrying blue and black plastic
bag full of
money and we left Majola driving my bakkie.
They
gave me R1000-00 to thank me for my bakkie and we were suppose to
meet with Majola. Mlenzana was carrying 9mm and Mshana’s

firearm fly wheel. From there we proceeded to Maimai Hostel
”
23.
The
State relied on
S
v Molimi
[8]
as
support for its contention that the statement was an admission. In
Molimi
the
statement of the accused indicated that he participated in the
planning of the robbery, and on the day of the robbery he was
to
participate therein as a lookout. The robbery was to take place
between 08h00 and 09h00. He commenced performing his role from
about
08h00. He waited until 10h00 but the robbery had yet to commence. He
then left. The robbery took place at 11h00. At the trial
the State
contended that this statement constituted a confession. The trial
court disagreed and dealt with it as an admission.
The Supreme Court
of Appeal (SCA) and the Constitutional Court (CC) agreed with the
trial court. The reasoning underlying the categorisation
of the
statement as an admission is that the accused had left the scene of
the intended crime before the crime had commenced and
by so doing had
dissociated himself or, at the very least, this allowed him to rely
on the defence of dissociation in order to
escape conviction. As a
result, it would not be correct for a court to convict him on a
charge of robbery if the only evidence
before the court was his
statement. For this reason the statement cannot be held to be
confession. Similarly, the State argued,
in this case, Accused 2 had,
in terms of his statement,
ab
initio
dissociated himself from the robbery and so it would not be possible
for the court to convict him on the basis of the sole evidence
of his
statement. The statement indicates that he has left open the
possibility of raising the defence of dissociation. This contention,

I find, is not persuasive for the simple reason that the facts as
revealed in the statement indicate that, despite his protestation

that he was not party to the robbery
ab
initio,
he clearly was present while it was being undertaken (he sat in one
of the getaway vehicles). Furthermore, he actively associated
himself
with it by providing his own vehicle (the “bakkie”) to be
used for purposes of transporting the other perpetrators
to the
robbery as well as a getaway vehicle. Thus, though he claimed not to
be party to the robbery he was, for all intents and
purposes,
actively associated with it. Nevertheless, the statement does not
indicate that he had the requisite
mens
rea
and absent this it would not be correct to convict him on any of the
charges he faced. According to the statement he lent his vehicle
to
Majola and received R1000-00 as a “
thank-you
”
gift. He played no part in the planning of the robbery, was not party
to it and did not share in the spoils. In the light
of his
explanation, especially his account that he lent his vehicle, despite
being aware of what its intended use was, and his
receiving of a
R1000-00 as a “
thank
you
”
gift, it cannot be said that the State has, by relying on the
statement alone, proved that he possessed the necessary
mens
rea
to commit the crime of robbery. As for the charge of murder there is
no indication that he was party to this offence whether directly
or
by virtue of sharing a common design with any of the perpetrators
thereof. Similarly, with regard to the charges of possession
of a
prohibited firearm, possession of an unlicensed firearm and
possession of ammunition, there is not a shred of evidence in
the
statement that indicates that he is guilty of these charges. For
these reasons, on the evidence of the statement alone, he
cannot be
convicted of any of the crimes for which he stands accused.
24.
It
follows then, that in my view, the statement is an admission and not
a confession.
25.
That
said, the controversy as to whether it is admissible or not remains.
Accused 2 challenged its admissibility on the grounds
that he was
denied access to legal representation when he needed it. This
prompted the State to rely on the evidence of Dlamini,
who effected
his arrest and who, while interviewing him recorded the statement,
and Constable Sibusiso Jameson Nzimande (Nzimande)
who, after
witnessing Dlamini interview Accused 2 and record the statement,
signed it in his capacity as a Commissioner of Oaths.
In rebuttal
Accused 2 relied on his own evidence and that of his erstwhile
attorney, Mr Siphiwe Dube (Dube).
Dlamini’s evidence
26.
Dlamini’s
testimony is that he arrested Accused 2 on 12 November 2012 and took
him to Jeppe Police Station where he was held
in custody. The next
day, at 11h00 he visited Accused 2 at the police station and
interviewed him. He was accompanied by Nzimande.
Throughout the
interview he spoke to Accused 2 in Isi-Zulu. Once again, the
interview was conducted by using the SAPS 3M(m) Form.
He informed
Accused 2 that he was there to interview him. As mentioned before,
the SAPS 3M (m) Form has been prepared by the SAPS
for use during
interviews of persons accused or suspected of having committed an
offence. It spells out the rights of the accused
persons. The two
crucial aspects of these rights are his right to silence and his
right to have a legal representative present
during the interview.
Dlamini read these rights out to Accused 2 who indicated that he
fully comprehended what was conveyed to
him. Accused 2 informed
Dlamini that he intended to co-operate fully with him and that he
would like to make a statement. Accused
2 specifically denounced his
right to have a legal representative present during the interview.
Nor did he say that he had already
secured the services of a legal
representative. Instead, he indicated that he was willing to answer
any questions posed to him
in the absence of a legal representative.
Dlamini then asked Accused 2 to relate what he knew about the robbery
at the Florida
Centre and the use of his vehicle (referred throughout
the trial as “the bakkie”), in the said robbery. In
response
thereto Accused 2 gave him an explanation about how his
vehicle came to be in the possession of Accused 1 and what the
intention
of Accused 1 was with regard to the usage of his vehicle.
After recording what Accused 2 had said, he read it back to Accused 2

who agreed that what was recorded was exactly what he had relayed to
Dlamini. Thereafter Accused 2 freely and voluntarily signed
the
statement and Nzimande signed it as a Commissioner of Oaths.
27.
Dlamini
was extensively cross-examined on his version. Much of the
cross-examination focused on the fact that numerous aspects of
the
SAPS 3M(m) Form were incorrectly filled in. In various parts of the
SAPS 3M(m) Form the person completing it is offered a number
of
options and is instructed to delete whichever option is inapplicable.
Dlamini had on more than one occasion failed to delete
the
appropriate option. However, he had no difficulty in admitting that
he failed to do so and explained this as immaterial errors
that did
not undermine the fact that the statement recorded was made by
Accused 2 and that the statement was freely and voluntarily
made.
He was further confronted with Accused 2’s version, which was
that at the time of the arrest (i.e. the day before
the statement was
taken) he, Dlamini, was approached by a gentleman who introduced
himself as the attorney of Accused 2. The gentleman
had given his
name and other credentials to Dlamini and had specifically informed
Dlamini that any statement taken from Accused
2 should only be taken
in his presence. He vehemently denied that this version was true and
correct. Instead, during the arrest,
someone came and told him he was
a lawyer, but did not say he would represent Accused 2. The person,
whom he later came to learn
was Dube, told him that he was related to
Accused 2. Dlamini also pointed out that the family of Accused 2 had
actually chosen
another legal representative to represent Accused 2
at his first appearance in court. He admitted that Dube was present
at the
time of the arrest and that Dube followed them to the Jeppe
Police Station. He claimed that Dube told him that he was related to

Accused 2 and he was interested to know for what offence Accused 2
was being arrested. Dube did not supply him with his telephone

contact number. However, Dube did take his (Dlamini’s)
telephone number and said that he would contact him the next day.

Most important of all, he was adamant that Dube did not claim to be
the legal representative of Accused 2, nor did he say that
if Accused
2 is to be interviewed he wanted to be present.
28.
He
denied that Accused 2 told him that he (Accused 2) wanted his
attorney to be present during the interview. Instead, he claimed,

Accused 2 was adamant that the interview could continue in the
absence of his legal representative.  Much was made of the
fact
that on the SAPS 3M(m) Form he wrote that the interview commenced at
11h00 and that it ended at 11h00. During this period
Accused 2 was
asked numerous questions and answered them in isiZulu which he wrote
down in English. All this is supposed to have
taken place in the span
of one minute.He denied that this indicated that the statement was
pre-written before the interview commenced
and that at the interview
all he did was ask Accused 2 to sign it. He claimed that the time
recorded on the statement was incorrect
and that he erred in this
regard. The interview lasted approximately thirty minutes. He was
unequivocal in his testimony (both
in chief and during
cross-examination) that Accused 2 was determined to make a statement
in the hope that he would be dealt with
leniently as a result of his
willingness to co-operate with the police during their
investigations.
Nzimande’s evidence
29.
Nzimande
stated that he witnessed the entire interview and confirmed the
evidence of Dlamini. He complemented it by stating that
before
Accused 2 signed he asked the customary questions posed by all
Commissioners of Oath: whether Accused 2 understood the contents
of
the statement, whether the contents were true, correct and whether
Accused 2 had any objection to taking the oath. Accused 2
responded
positively to the first two questions and indicated that he had no
objection to taking the oath, which he then administered.
Thereafter
Accused 2 signed the document. Much was made during cross-examination
of the fact that his name was not inserted on
the document, but this
in my view does not take the matter any further as it is not disputed
that both he and Accused 2 signed
the document. Ndzimande conceded
that he failed to follow procedure with regards to completing and
co-signing the document as carefully
as he ought to have, but
maintained that he followed it in all its substance. Again, in my
view, nothing turns on this failing
on his part.
Accused 2’s evidence
30.
Accused
2 stated that he had sat for his matric exams and thereafter had
registered at a college for heavy electrical engineering,
but only
remained in college for six months. He said he was literate in the
English language.
31.
He
owned a vehicle,
a
white bakkie
,
which he used to hire out to people for a fee, as well as to
transport goods for people for a fee. Both activities secured an

income for him, which income was necessary for his survival. On 3
October 2012 he hired the vehicle out to Accused 1, who told
him that
he intended to use it for transporting goods. He had known Accused 1
as someone who worked as a “
queue
marshall
”
at the Kagiso taxi rank. After agreeing on a price with Accused 1 for
the use of the vehicle, he parted with it at this
taxi rank. Accused
1 was to return the vehicle at the same taxi rank later that day but
failed to do so. He tried to contact Accused
1 by calling him on his
cell phone but found that the call was not answered by Accused 1. As
a result he was forced to leave a
message for Accused 1 to call him
back. The next day he went again to the taxi rank to look for Accused
1. He was told by someone
– he cannot recall who – that
while driving his vehicle in Florida Accused 1 had been involved in
an accident. He was
not able to acquire any further information,
either about the welfare of Accused 1 or the whereabouts of his
vehicle. He continued
going to the taxi rank everyday thereafter in
the hope that Accused 1 would show up so that he would be able to
either get his
vehicle returned to him or at least get some
information about its whereabouts. This practice continued until 12
November 2012.
32.
On
12 November 2012 many police officers in civilian clothes came to his
residence carrying rifles. Dlamini was among them. Most
of them also
wore “
balaclavas
”
to conceal their faces. Dlamini introduced himself and told him that
he was under arrest. Dlamini did not inform him of
his rights as an
arrested person. The police officers searched his room. He was placed
in a police vehicle. While sitting in the
vehicle, he requested that
his “
homeboy
”
(“
umfowakithi
”)
be called and informed that he was being arrested. This “
homeboy
”
is Dube. He also requested that his family be informed of his arrest.
Dlamini acceded to his request.  Soon after Dube
arrived. He
gave two accounts of what happened next:
i)
Dube
was not allowed to converse with him at all and had not conversed
with him until they met at court during one of his appearances;
and,
ii)
Dube
spoke to him, but this conversation was restricted to Dube asking the
question: “what is happening?”  to which
he replied:
“I have been arrested.” Thereafter Dube left him to in
order to converse with Dlamini. He did not converse
with Dube at all
again until he met Dube at court during one of his appearances.
33.
He
was driven to Jeppe Police Station where he was detained in
isolation. At the entrance of the cells he read the words: “
High
Security Section
”.
He was given a document which spelt out his rights as an arrested
person, but he did not read it. The next day at about
11h00 he was
visited by Dlamini and Nzimande. Dlamini informed him that he was
being arrested because his “
bakkie
”
had been used in a robbery at Florida. Dlamini did not inform him of
his rights. Dlamini presented him with the SAPS 3M(m)
Form. It was
already completed by Dlamini and he was asked to sign, which he did.
He assumed that he was signing a document in
which it was stated that
he was the owner of the “
bakkie
”.
He denied making the statement, which he claims was already written
on the document when he was taken from his cell. He
denied that he
informed Dlamini that he was willing to co-operate with the police in
the hope that this may secure lenient treatment
from the police and
the courts. He agreed that he was not threatened or coerced by
Dlamini or anyone else into making the statement.
The next day he was
taken to a magistrate so that his confession could be recorded.
However, the magistrate refused to record his
confession as he was
not accompanied by his legal representative. He was returned to the
cell at Jeppe Police Station. He admitted
that at his first
appearance in court he was represented by a Mr Leisher and not by
Dube.
34.
Finally,
he gave the following account of how he came to know Dube:  that
they met at the bottle store and they would sit occasionally
together
on the veranda where they would engage in discussions about women.
Dube’s evidence
35.
Dube
is admitted as an attorney. On 12 November 2012 he was in the
vicinity of the Kathorus (Katlehong, Thokoza, Vosloorus) area

transporting clients when he received a telephone call from a Mr
Mbatha (Mbatha). Mbatha informed him that his son was in trouble
with
the police and asked him to visit the residence of the son and see if
he could help. He was given the address of the son,
and immediately
proceeded to the said residence as he was keen to secure “
the
brief
”
to represent Accused 2.  Upon his arrival he found many
policemen, most of whom were wearing “
balaclavas
”
to conceal their faces. Most of them were also carrying
semi-automatic rifles.  The one policeman without a firearm,
and
who also did not conceal his face, was Dlamini. He was able to
immediately discern that Dlamini was in charge of whatever operation

the police were conducting.  As he got closer he noticed that
Accused 2 was seated in a VW Kombi. There was another person
standing
around and he decided to converse with him, who turned out to be the
younger brother of Accused 2. The younger brother
pointed out Accused
2 to him and confirmed that Mbatha was their father.  At that
point he realised that he knew Accused 2
as he had previously met him
when Accused 2 saw him transporting cattle. Accused 2 approached him
and told him that he (Accused
2) was interested in engaging in
farming activities. He himself, whilst being an admitted attorney,
also engaged in the “
farming
of chickens, cattle, sheep and goats
”.
He also owned a liquor retailing outlet (“
a
bottle store
”)
in Thokoza, where he met Accused 2 on some occasions. During one of
these conversations, he informed Accused 2 that he
was an admitted
attorney and supplied Accused 2 with his business card.
36.
He
approached Dlamini and introduced himself as an attorney practising
in Pretoria. He told him he was approached to render legal
assistance
to Accused 2 and sought permission to speak to Accused 2. Dlamini
allowed him to speak to Accused 2. He asked Accused
2 what was
happening. Accused 2 informed him that he had just been arrested. He
immediately left Accused 2 to speak to Dlamini.
He did not speak to
Accused 2 again, until they met in court during one of Accused 2’s
appearances. Upon confronting Dlamini
again, he asked why Accused 2
was arrested. Dlamini refused to give him details, save to say that
he would be taking Accused 2
to the Jeppe Police Station, where
Accused 2 would be detained.  He denied telling Dlamini that
Accused 2 was his brother-in-law.
Dlamini and the rest of the police
officers drove-off in a number of vehicles. Accused 2 was in one of
them. He followed them.
The vehicles used by the police officers
stopped at a petrol station where the policemen wearing “balaclavas”
removed
them. He approached Dlamini and said to Dlamini that Dlamini
should not be alarmed at the fact that he was following them. Dlamini

had no difficulty with him following them. He told Dlamini that he
was the legal representative of Accused 2 and that if Dlamini
wished
to interview Accused 2, he insisted on being present. According to
him, the exact words that he used were: “
I
told him
(Dlamini)
that
don’t you dare cause my client to give a statement without my
involvement, without my knowledge.
"
Dlamini did not engage him further on this. They drove-off towards
Jeppe Police Station. At Jeppe Police Station he approached
Dlamini
once again and repeated that he was the appointed legal
representative of Accused 2, and that he insisted on being present
at
any interview that may be conducted with Accused 2. Dlamini, once
again, did not engage with him on this topic. By this time
it was
late in the evening and, as Dlamini had told him that Accused 2 was
to be detained, he left. Dlamini refused to allow him
to speak to
Accused 2 again and told him that he was still investigating the case
against Accused 2. He was never able to ascertain
what charges were
to be brought against Accused 2. He did not consider launching a bail
application in order to secure the release
of Accused 2. Prior to
departing, Mbatha had arrived. He spoke to Mbatha who gave him the
mandate to represent Accused 2. Mbatha
wanted to see Accused 2, but
he told Mbatha that the police would not allow them to see Accused 2.
Mbatha did not approach the
police nor did he instruct Dube to launch
a bail application.
37.
During
cross-examination he was asked how Mbatha got to know of him. He
stated that Mbatha could have got his business card from
someone
residing in the area. He had supplied his business cards to many
people in the hope of securing business. Mbatha, however,
was never
his client. When he got the call from Mbatha he did not ask any
questions nor raise the issue of fees with him. He was
most keen on
securing the brief and this was all that mattered to him at the time.
Mbatha supplied him with the address of Accused
2.  He now works
for the firm representing Accused 2. He denied ever telling Dlamini
that Accused 2 was his brother-in-law.
He was particularly pressed on
the issue that if he knew that he could well be a witness in the case
testifying on behalf of Accused
2, why did he elect to represent
Accused 2 for such a long time, and then only relinquish that role
when he asked his superior
at the firm to take over the
representation. He claimed that until the moment came for him to
testify there was, in his view, no
conflict of interest. He did,
however, concede that in hindsight he should have withdrawn as
representative a long time ago, and
that he should have told Accused
2 to find another representative rather than asking his superior to
take over. However he was
motivated by his desire “
to
keep the brief
.”
He conceded that in all his consultations with Accused 2, Accused 2
did not once complain of any wrongdoing on the part
of Dlamini. In
particular there was no allegation that Dlamini threatened or
assaulted Accused 2.  However, from the moment
of the arrest he
feared that Accused 2 would be “
tortured
”.
He was asked on more than one occasion why, under these
circumstances, did he do nothing to secure the rights of Accused
2,
such as report Dlamini to his superiors or launch an application in
court to secure the release of Accused 2. He said he did
not think
about it at the time. He also conceded that in the initial stages of
Accused 2’s appearances in court Accused 2
was represented by
another attorney, Leisher, and not by himself. He was confronted with
the fact that during his testimony Accused
2 claimed that he (Accused
2) did not know who contacted Dube to come to his home at the time of
his arrest. It was pointed out
that this contradicted his version
that, when he approached Accused 2 who was seated in a VW Kombi with
police officers, he told
Accused 2 that Accused 2’s father had
asked him to come and assist and that he had responded by saying: “
No
comment.
”
Further, when he was alerted to the fact that Accused 2 had signed
the statement, he sought instructions from Accused 2
as to its
contents and as to the circumstances under which it was signed.
Accused 2 had always told him that he (Accused 2) had
not signed it
at all. He could not explain why this version was different from the
one presented to this court by Accused 2. Finally,
he was confronted
with the fact that Accused 2’s version was that they met at a
bottle store and that they would socialise
together (“
sit
together at a veranda
”)
where they would converse “
about
women
”.
He could not explain why Accused 2 would claim this to be so.
According to him Accused 2 was not truthful to the court
in this
regard.
Conclusion regarding the statement of Accused 2
38.
As
there was no allegation by Accused 2 that he was coerced in any form
to make the statement, the only questions before this Court
are
whether Accused 2’s right to legal representation was denied to
him before the statement was taken, and whether Accused
2 actually
made the statement. These are factual questions.
39.
A
crucial fact that is common cause is that Accused 2 did not tell
Dlamini or Nzimande that Dube was his legal representative. This
is
consistent with both accounts he gave as to what transpired between
him and Dube at the time of his arrest. On the first account
he did
not speak to Dube, which means that he could not have appointed Dube
as his legal representative. On the second account
he spoke to Dube,
but this conversation was restricted to Dube enquiring from him as to
what was happening and him responding by
stating that he was
arrested. That was the sum total of the conversation. Dube did not
offer his services as a legal representative,
nor did Accused 2 ask
him to provide such services. After telling Dube that he was
arrested, Dube left to speak to Dlamini. The
next time he spoke to
Dube was at court during one of his appearances. Thus, on both
accounts there was no contract concluded between
himself and Dube
empowering Dube to act as his legal representative.
40.
Another
important fact is that Dube claimed, that at the time of the arrest,
he heard of it while he was busy transporting other
clients back to
their residence and decided to go and investigate. At that point he
had not secured a contract to represent Accused
2. He was contacted
by the father of Accused 2 who had asked him to go to the place of
the arrest and see if he could help. This
is what he had done.
Thereafter, his sole concern was, to borrow a phrase from his
testimony, “
to
secure the brief
”.
He was not sure as to which point during the event was he able to
safely conclude that he had secured the brief. –
i.e. concluded
the contract to represent Accused 2.
41.
Dube
claimed that he was appointed by Accused 2’s father to
represent Accused 2. He was unable to furnish any details of the

conversation with the father, save to say that he was asked to
represent Accused 2 which he agreed to do. Upon meeting Accused
2 at
the time of the arrest, Dube did not tell Accused 2 that Accused 2’
father had contacted him, and asked him to represent
Accused 2.
Instead, all he did was ask Accused 2 what happened. Upon being told
by Accused 2 that he had been arrested he, without
pursuing the
conversation any further, immediately moved away and went to speak to
Dlamini. He had no further conversation with
Accused 2.
42.
In
these circumstances, I hold that the probabilities favour Dlamini’s
version that at the time of the arrest Dube did not
tell him that he
(Dube) represented Accused 2.
43.
There
were some serious material differences in the testimonies of Dube and
Accused 2. Some of these differences are mutually exclusive.
44.
Dube
vigorously attempted to show that he and Accused 2 were not friends,
had no personal bonds and instead he only had a professional

relationship with Accused 2. It has to be said that he was not very
successful in this regard: during his testimony he constantly

referred to Accused 2 by his first name, giving a clear indication
that he knew Accused 2 well enough to converse with him on a
personal
level. The tone and manner in which he gave his evidence indicated
that there was great warmth between him and Accused
2. Dube gave a
rather cryptic account of how he got to learn of the arrest and how
he came to be appointed as the legal representative
of Accused 2. He
claimed that he was telephoned by Accused 2’s father, but could
not give any further details in this regard.
He could not explain
why, if he was already appointed as the legal representative of
Accused 2, he was so anxious “
to
secure the brief
”
when he got to the residence of Accused 2 just as Accused 2 had been
arrested. Taking these facts into account it must be
noted that
Accused 2’s version that they were friends is more probable
than that of Dube.
45.
At
the first court appearance of Accused 2, Dube did not represent him,
Leisher did. Dube did not even know of the court appearance.
If
Accused 2 was indeed his client, he should have taken all the steps
to ensure that he knew when Accused 2 was to appear in court
and to
acquire the necessary instructions to apply for Accused 2 to be
released upon the payment of a bail bond. It would only
be reasonable
for Accused 2 to apply for his release, or for Dube to bring the
application on the instruction of Accused 2’s
father –
after all, he was instructed by the father to assist Accused 2.
46.
In
my view Dube was not candid with this court. In arriving at this
conclusion I took note of the fact that he is an officer of
this
court as well as a member of the Law Society bound by its rules of
ethics and for that reason did not come to the conclusion
easily. It
is a conclusion I have arrived at after taking careful note of the
testimonies of Dlamini and Accused 2 and the contradictions
in Dube’s
own testimony.
47.
Returning
to Accused 2’s testimony, according to him he did not inform
Dlamini or Nzimande or any other police officer who
was present
during the arrest that he had hired his vehicle to Accused 1 on 3
October 2012 and had not seen it since. Yet he knew
from them that
they were arresting him because his vehicle was used in a robbery in
Florida on the very day he hired it out. His
version was that he
remained silent about the fact that he hired it out, but when Dlamini
presented him with a statement he signed
it without reading it and
assumed that its contents was about the fact that his vehicle was
missing. This version is so devoid
of crucial explanatory facts that
it cannot, in all probability, be true.
48.
Prior
to Accused 2 closing his case in this trial within a trial his
representative was asked if Accused 2’s father was available

and whether he would be called to testify. The response provided was
that Accused 2 had no desire to call him to testify. This
is
unfortunate, for he could have shed some light on the interaction
between himself and Dube. His failure to do so leaves the
court with
only Dube’s version as to how he came to be appointed as
Accused 2’s representative. This version on its
own does not
bear scrutiny, for it fails to explain why the father did not
instruct Dube to launch an application for the immediate
release of
Accused 2 on bail. Also it does not assist the court in establishing
why the father did not ensure that Dube represent
Accused 2 at the
first court appearance, or for that matter how it came about that
Leisher and not Dube represented him at that
court appearance.
49.
Having
regard to all of the above, I have no hesitation in finding that the
State has proved beyond reasonable doubt that the statement
of
Accused 2 was freely and voluntarily made. Thus, the State’s
application to have it admitted as evidence was granted.
The third trial within a trial
50.
A
third trial within a trial was held in order to determine whether a
statement made by Accused 3 should be admitted as evidence.
Dlamini’s evidence
51.
Dlamini
testified that he received information from his informants that one
of the persons involved in the robbery that occurred
on 3 October
2012 at the Post Office in the Flora Centre was a person known as
Mlenzana. He was further informed that he could
find Mlenzana at the
Boksburg Prison as he was in custody awaiting trial in another
criminal matter. On 26 April 2013 he went to
Boksburg Prison to find
Mlenzana. He called for him. In response Accused 3 appeared. He spoke
to Accused 3 who confirmed that he
was known as Mlenzana and informed
him that his full name was Bongani Mabena. He informed Accused 3 that
he was a policeman who
was investigating a robbery at the Flora
Centre and that he believed that Accused 3 was one of the
participants in that robbery.
Accused 3 informed him that he wished
to confess his participation in that crime, and that he hoped that by
doing so his co-operation
would attract favourable treatment from the
court.
52.
As
his rank precluded him from recording a confession, he arranged for a
more senior officer with whom he had previously worked,
a Captain
Yoginderan Soobramoney Naidoo (Naidoo), to record the confession. At
about 16h10 he booked Accused 3 out of the prison
and took him to
Brixton Police Station (Brixton) where he arrived at about 16h45.
When he got to Brixton, he took Accused 3 to
the office of Naidoo,
but Naidoo was busy. He then booked Accused 3 into the cells at
Brixton and left. The next morning between
11h00 – 12h00 he
returned to Brixton where he found Accused 3 and took him back to
Boksburg Prison. Throughout the time that
he spent with Accused 3 –
while transporting him to and from Brixton – Accused 3 did not
complain to him about being
assaulted or threatened by anyone to
force him to confess. Nor did he report that he had been promised any
favours by anyone should
he confess to participating in the robbery.
Naidoo’s evidence
53.
Naidoo
testified that he was a Captain in the SAPS stationed at Brixton. On
26 April 2013, he was asked by Dlamini to assist him
by recording a
confession of a suspect in a case Dlamini was working on. He agreed
to do so. Dlamini came with the suspect at or
about 16H45. He was
busy at the time and told Dlamini to bring the suspect back later.
However, about ten (10) minutes later he
sent one of his subordinates
to fetch the suspect and Accused 3 was brought to him.  He
enquired from Accused 3 if Accused
3 was conversant in English and
whether he required the presence of an interpreter. Accused 3
categorically stated that he is fully
conversant in English and that
he did not require the services of an interpreter. Thereafter he
introduced himself and explained
his rank. He told Accused 3 that he
was informed that Accused 3 wanted to confess. Accused 3 confirmed
this. He learnt from Accused
3 that Accused 3 had already appointed a
legal representative and asked if Accused 3 wanted his legal
representative present. Accused
3 responded in the positive. He
offered Accused 3 a telephone to call his legal representative.
Accused 3 dialled the telephone
number and held the receiver to his
ear. After a while Accused 3 put the receiver down and told him that
the call was not answered.
He informed Accused 3 that Accused 3 had a
right to a lawyer at the state’s expense and that if he
exercised this right a
lawyer would be appointed to assist him.
Thereafter he asked Accused 3 what he wanted to do. Accused 3 said
that he wanted to proceed
without his legal representative and that
he did not want the State to furnish him with a legal representative.
Only then did he
commence with recording the statement of Accused 3.
He decided to use a pro-forma document to record it. The pro-forma
form contains
a statement spelling out the constitutional rights of a
suspect. He read the statement out to Accused 3 who confirmed that he
understood
his constitutional rights. Accused 3 also read the part
spelling out his rights and thereafter initialled the document
alongside
that section. Accused 3 supplied him with his name, which
is Bongani Mabena. He recorded this. He asked Accused 3 questions to
which Accused 3 responded and he recorded the responses on the form.
It was clear to him from the way Accused 3 responded to the
questions
that Accused 3 had no difficulty with the fact that they communicated
in the English language only. Accused 3 was relaxed
during the entire
time. He did not complain that he was threatened by anyone or claim
that he was promised any benefits that induced
him to confess.
However, he specifically asked Accused 3 if he had been assaulted and
if so whether such assault played any part
in him deciding to
confess. Accused 3 answered in the negative. Accused 3 specifically
indicated that he had hoped that his confession
would in due course
be viewed favourably by the court. After completing the form, which
included writing the statement Accused
3 made, he read it back to
Accused 3 who confirmed that it correctly records what he had said.
Accused 3 wrote the words “
I
have satisfied
”
on the form and then signed it. Thereafter he, too, signed it.
54.
During
cross-examination it was put to him that, prior to Accused 3 being
brought to him, three policemen suffocated Accused 3 in
the cells. He
stated that Accused 3 did not inform him of this at the time. He did
not notice any signs of suffocation. Instead
Accused 3 was relaxed
throughout the interview. It was put to him that he spoke harshly
towards Accused 3, which caused Accused
3 to be scared of him. This
prevented Accused 3 from telling him of the suffocation he endured at
the hands of the three policemen.
Accused 3’s evidence
55.
In
response to the State led evidence of Naidoo, Accused 3 testified
that he was a Zimbabwean citizen who had been in South Africa
for a
few years when he was arrested. He stated that on 26 April 2013 he
was booked out of Boksburg Prison by Dlamini and taken
to Brixton to
attend an Identity Parade (Id parade) the next day, which was a
public holiday, and to be interviewed by Naidoo.
Upon his arrival at
Brixton, he was taken directly to Naidoo’s office by Dlamini.
Naidoo was busy with something at the time
and asked Dlamini to bring
him back later. Dlamini then booked him into the cells in Brixton. A
little while later he was taken
by another policeman to Naidoo’s
office. Prior to being taken to Naidoo’s office he was visited
in the cells by three
policemen. He was handcuffed behind his back
and thereafter a plastic bag was placed over his head making it
difficult for him
to breathe. This caused him considerable pain,
moreso as he suffers from asthma. They told him that unless he agreed
that he knew
Majola, and that he participated in the robbery of the
Post Office at the Flora Centre, they would continue to suffocate
him. Thereafter
he was taken to Naidoo’s office. He was left
alone with Naidoo. The mood in the office was “
harsh
”.
Naidoo was fiddling with his papers and spoke in a loud voice.Naidoo
asked him if he had a legal representative and he
said ‘yes’.
He gave the name of his legal representative, a Mr Ntokozo Buthelezi
(Buthelezi), to Naidoo. He agreed
that Naidoo provided him with a
telephone and offered him the opportunity to call Buthelezi. He
dialled Buthelezi’s number
but failed to get a response. He
confirmed that he did not tell Naidoo of the visit of the three
policemen to his cell, and of
the fact that he was suffocated by
them, as he was afraid of Naidoo. He also confirmed that he agreed to
continue with the interview
in the absence of Buthelezi. He confirmed
that Naidoo read out the contents of the pro-forma form to him and
that he read out questions
from the form. Naidoo filled in the
answers he provided, though he denies that he was fluent in the
English language. He claims
that he passed Form 2. It was clear
during his testimony that he had little difficulty in comprehending
English. There were times
when he furnished an answer to a question
before the interpretation was complete, and on a few occasions he
corrected the interpreter
thus ensuring that his testimony was
properly conveyed to the court. While it was good that he took care
to ensure that his testimony
was properly conveyed, it has to also be
noted that this revealed that he is fluent enough in the English
language to have understood
the questions posed to him by Naidoo
during his interview, and the fact that he furnished answers in
English.
56.
He
admitted that certain questions on the form were read by himself and
he personally wrote the answers thereto. Some of the relevant
ones
are:
“
1.
Do you understand the warning which I have given you?
Answer:
“
Yes
I do understand
”
2.
Do you wish to make a statement?
Answer:
“
Yes
I wish to make a statement.
”
3.
Have you been assaulted or threatened by any person in order to
influence you to come and make this statement?
Answer:
“
No
I wasn’t assaulted.
”
4.
Were you in any way influenced or encouraged by any person to make a
statement?
Answer:
“
No.
”
5.
Have any promises been made to you by any person if you should make a
statement?
Answer:
“
No
promises.
”
6.
Do you expect any benefits if you make a statement?
Answer:
“
Court
feel pity.
”
57.
However,
on the basis of his claim that he was suffocated he contends that the
statement recorded by Naidoo was not freely and voluntarily
made.
Conclusion on the statement of Accused 3
58.
One
of the problems with his contention is that he only complained of
being suffocated when it was raised for the first time during
this
trial. He had numerous opportunities prior to that to raise it but
failed to do so. He does not deny that these opportunities
were
there. The very first time he had this opportunity was before the
statement was taken down by Naidoo. He was alone with Naidoo
in the
office and was asked if he was threatened by anyone to which he
replied, “
No
”.
He was supplied with a telephone by Naidoo to call his legal
representative, Buthelezi, and when Buthelezi failed to answer
his
call he could have stated that he did not want to continue without
Buthelezi’s presence or at least not until he had
spoken to
Buthelezi. He appeared in the magistrates’ court sometime after
that where he was legally represented. He claims
that he told
Buthelezi of the assault but Buthelezi told him that he must tell the
court. He therefore waited for this hearing
to tell this court. He
cannot explain why Buthelezi did not place this on record at the
magistrates’ court. However, he does
not deny that neither
Naidoo nor Dlamini threatened or assaulted him. He does not deny that
he read the questions posed on the
pro-forma form and in his own
words wrote some of the answers, especially those quoted above in the
previous paragraph.
59.
Taking
all these facts into account, I have no hesitation in finding that
the statement was freely and voluntarily made and is therefore

admitted as evidence in the main trial.
60.
Before
closing on this subject it bears mentioning that all three accused
were very poor witnesses. They were not able to answer
simple
questions. They constantly sought refuge in loss of memory as to what
transpired in order to avoid having to answer to the
fact that their
evidence was inconsistent with the established facts, or with each
other’s testimony. All three of their
testimonies were
completely lacking in credence. The same applies to the testimony of
Dube who testified on behalf of Accused 2.
However, the decision to
admit the statements was based largely on the fact that the
probabilities in each case favoured the State’s
version, and
not those of the accused or Dube.
61.
The
statement of Accused 3 reads:
“
1.
Last
year sometime, I am not sure of the date or the month, at the time I
was a taxi driver for Mr Mthoko driving the line of MTN
town to
Alexandra. I received a call from a Mr Majola one of my friends who
used to support my food business and then arranged
the taxi driving
job for me. He wanted to see me urgently at Faraday Taxi Rank. I then
drove the taxi I was driving a white quantum
Toyota taxi to Majola.
2.
Majola
was alone and he told me that he and some other guys have a job to do
and they need a transport. He did not tell me what
kind of job it
was. I agreed to take him and he said he will direct me. He then
called his friends who were not far from where
we were. Majola’s
five friends then jumped into my taxi. I do not know Majola’s
friends and they did not look familiar
to me. Majola jumped into a
Hilux bakkie and told me to follow.
3.
We
then drove towards Krugersdorp, Florida. I followed him all the way
until we got to a shopping mall whereby Majola indicated
to me to
stop. I stopped next to the robot. One of my occupants in my taxi
then received a call from Majola and they all jumped
out and walked
towards the mall. Majola then indicated to me to follow him. He then
drove to a place a little further away from
the mall and told me to
park there and wait for his friends. Majola then drove towards the
mall.
4.
I
then waited for about 15 to 20 minutes and then I saw Majola coming
with the bakkie towards me. His friends were all at the back
of the
bakkie. When they reached the quantum his friends jumped out and
jumped into the taxi. I saw one of them having a bag of
money in his
hands and also saw a gun. Majola drove off after dropping of his
friends. I was then told to drive back to Faraday
Taxi Rank.
5.
As
I was taking off I heard gun shots. I saw that Majola was shooting at
a traffic officer. His friends wanted me to stop, but I
just drove
till I reached the taxi rank. When we got to the taxi rank, they gave
me R1800-00 and left. I then continued with my
normal taxi duties. I
never heard from Majola again or saw him or his friends. I was then
arrested this year. That is all I know
and can say about my
involvement.
”
The case on the merits
62.
The
State called numerous witnesses: The key ones were Charmaine Marais
(Marais), Ernest Brandon (Brandon), Ntando Eugela (Eugela),
Raechel
Herbert (Herbert), David Mawela Takalani (Takalani), Sergeant
Johannes Albertus Rothman (Rothman), Constable Deon Mongwe
(Mongwe)
and Dlamini.
The evidence of Marais
63.
Marais
testified that about lunch-time on 3 October 2012 at the Post Office
in the Flora Centre where she is employed as branch
manager a robbery
took place. On the previous day she had been alerted to a
suspicious-looking male who wore a white cap and walked
with a limp.
That same man was one of the perpetrators. At the commencement of the
robbery, she heard a colleague scream and run
towards the toilets at
the back. Before she could do anything, a male came to her and said
"
Open
there
".
He gave her a small black plastic bag and said "
Put
it in here.
"
She thought she saw a firearm in his hand but cannot be sure. There
were a number of perpetrators in the Post Office, but
she could not
say how many they were. She did not look any of them in the face.
The perpetrators took approximately R40 000.00
and left. After they
left she heard gun shots.  She would not be able to identify any
of the perpetrators.
The evidence of Brandon
64.
Brandon
is a teller at the Post Office where the robbery took place. He was
at the back of the Post Office at the time and heard
gun shots. He
came to the front to investigate. He saw the perpetrators making
their exit.  He decided to follow them in order
to ascertain how
many they were.  At the exit of the Centre he saw three (3) of
the perpetrators climb into the back of a
white bakkie which
drove-off at a high speed. After a few minutes a call was received by
one of his colleagues who was told that
there had been a road
accident involving a white bakkie not far from the Centre, and that
someone from the Post Office should come
there. He went. Upon his
arrival, he realised that the white bakkie was the same one that was
used by the perpetrators to escape
after committing the robbery.
He would not be able to identify any of the perpetrators.
The evidence of Eugela
65.
Eugela
is a security manager at the Flora Centre. On 3 October 2012 he got a
call from someone working in the Post Office and was
told that it had
just been robbed. He rushed to the Post Office. On his way there he
saw three (3) people come out of the Post
Office. He noticed one of
them had a black bag in his hand. One of them pulled out a gun from
the front of his pants. He looked
carefully at that one. Their eyes
met. That man discharged his gun. He took cover. The three men exited
the Centre. He followed
them and saw them climb into a white bakkie.
Later he heard more gunshots coming from outside the Flora Centre. He
did not go and
investigate. On 27 September 2013 an Id parade was
held where he was asked to attend and identify the person he saw
discharge the
firearm in the Centre on 3 October 2012. He identified
Accused 2 as being that person. He was absolutely sure about that.
The evidence of Herbert
66.
Herbert
lives close by the Centre. On 3 October 2012 at about 14h00 while
relaxing on his veranda he heard a single gunshot followed
by a
series of gunshots indicating that it was an automatic rifle that was
being used. He went to investigate.  About three
(3) houses away
from his he saw a white bakkie on the pavement facing a tree.
As he got nearer he saw a policeman lying next
to a motorbike. When
he passed the bakkie he noticed that the side window was broken and a
man was lying on the front seat with
his eyes closed. It appeared
that the man was shot. He shouted, asking if the man was all right,
and saw that the man’s eye-lids
moved. He looked carefully at
the man and noticed that there was an automatic rifle lying on his
lap. He immediately went to the
policeman to see if he could be of
any assistance. An ambulance and more policemen arrived. Suddenly the
bakkie moved away. Thereafter
he lost sight of the bakkie. He would
not be able to identify the driver of the bakkie.
The evidence of Takalani
67.
Takalani
testified that he was employed as a taxi driver. On 3 October 2012 he
was driving his taxi down Ontdekkers Road towards
Westgate, just
after 14h00. While approaching a traffic light controlled
intersection with Gordon Road a white bakkie, which was
required by a
red traffic light to stop, appeared at high speed and collided with
his taxi. The bakkie continued to move and was
in the process of
escaping, but then came to a halt. One of the tyres of the bakkie was
flat. He alighted from his taxi and went
to confront the driver of
the bakkie. When he reached the bakkie he noticed that the driver was
the only person inside and that
he appeared to be hurt.  He saw
blood oozing from the head of the driver. He tried to speak to the
driver but received no
response. He saw a firearm on the lap of the
driver and got a fright. He immediately retreated to his taxi. A few
seconds thereafter
the bakkie moved a bit but did not go far before
it collided into a wall. The damage to his taxi cost R150 000.00 to
repair. Fortunately
neither he nor any of his passengers were injured
by the collision. After crashing into the wall, the driver of the
bakkie alighted.
He had the firearm in his hand. The firearm fell out
of his hand and he fell down. An ambulance had arrived and the
ambulance personnel
went to treat the driver. Takalani identified the
driver of the bakkie as being Accused 1 in the dock.
The evidence of Rothman
68.
Rothman
is a Sergeant with the SAPS. On 3 October 2012 he was summoned to a
crime scene in Florida. He got to the scene at about
15h30. He found
the scene cordoned off by the police and a white bakkie inside the
cordon. He took photographs of the scene, including
the bakkie. The
inside of the bakkie was blood-ridden. There was money, two cell
phones both of which had blood on them, a white
cap, a cell phone
charger and cash inside the bakkie. There was a R5 rifle lying
outside the driver’s door. He saw a bullet
hole in the back
window of the bakkie and in the driver’s seat headrest. From
this he conjectured that the drivers had been
shot in the back of his
head.
The evidence of Mongwe
69.
Mongwe
is a constable in the SAPS. On 3 October 2012 at about 14h30 he was
driving in the vicinity of the Centre when hereceived
a radio report
to the effect that a robbery had just taken place at the Flora
Centre. The call had alerted him to be on the lookout
for a white
bakkie that was travelling in the area. He saw a white bakkie
travelling fast. He gave way for it to pass and immediately
saw a
policeman on a motorbike giving chase. Soon after this the policeman
fell from the motorbike. The bakkie had turned a corner.
He went in
search of the bakkie and saw that it had collided with a taxi. He
pursued it and within a minute or two it came to a
halt after
knocking into a wall. He saw the driver of the bakkie get out with an
R5 rifle in his hand. The driver tried to run
but staggered and fell
to the ground. The R5 rifle fell beside him. He got to the driver and
arrested him. The driver was conscious.
He informed the driver of his
rights in isi-Zulu. The paramedics arrived and transported the driver
to the Helen Joseph hospital
under police guard. He looked inside the
bakkie and found a Capitec bank debit card in the name of Bongi Nkosi
Khumalo (Accused
2), a drivers licence in the name of Accused 2,
ammunition for the R5 rifle on the seat which he counted to be 27,
spent cartridges
inside the bakkie, two (2) cell phones and money
which had blood all over it. He cordoned off the scene.
70.
All
the above witnesses were cross-examined by all three Accused. This
cross-examination did not discredit any of their evidence
or diminish
its probative value.
The evidence of Dlamini
71.
Dlamini
presented hearsay evidence concerning information he received as to
the cell phone number used by Accused 3 and the name
by which Accused
3 is known.
72.
Dlamini
testified that he was furnished with the cell phone number of Accused
3 and told that Accused 3 is known as Mlenzana. The
persons that told
him this are Mr Eddie (Eddie), a Mr Prince (Prince) and Accused 2.
The cell phone number is 083 4046958. As for
the name Mlenzana,
Dlamini referred to Accused 3 by this name each time he dealt with
him and Accused 3 had no problem with this.
In fact, Accused 3 always
responded to this name. Regarding the sources of his information he
stated that he did not know the full
name of Eddie or of Prince. He
could not even say if those are their correct names. Both of them
were informers for him and he
only knew them as Eddie and Prince.
Eddie was subsequently arrested for allegedly having committed some
offence. He last spoke
to Eddie while Eddie was in custody. Once this
trial commenced he visited the prison in order to discuss this case
with Eddie.
He subsequently learnt that Eddie had passed on, but he
had been unable to confirm whether this was true or not.
Nevertheless,
he had not been able to make any contact with Eddie. As
for Prince, he spoke to Prince recently and asked him to come and
testify
in this case, but Prince refused citing a fear for his life
should he do so. Prince was from Zimbabwe and had since left for
Zimbabwe,
or so he had learnt. He fully understood Prince’s
reluctance to testify and would not support any efforts to compel
Prince
to do so. In fact, he was in some respects supportive of
Prince’s decision, as it was integral to the relationship he
had
with all his informers that he protected their confidence and
their identities. If he was unable to do so, he would soon find
himself
without any informers and his investigative work would suffer
irreparable harm.
73.
As
for Accused 2, he was told by Accused 2 on the day after his arrest
and during the interview he had with him, that the number
083 404
6958, was being used by Accused 3. During the interview he asked
Accused 2 to call Accused 3 on that number, which
he did. But the
call was not answered. More than one call was made to that number by
Accused 2 at that time but none of them elicited
a response. Dlamini,
however, was only present when the first call was made. He instructed
Accused 2 to make the call as he was
looking for Accused 3, and had
hoped to find out his whereabouts through the conversation between
Accused 2 and 3.
Documentary evidence
74.
The
State also led evidence of records of the cellphone company which
reflect the usage of the cellphone number of Accused 2 to
support
Dlamini’s evidence that the calls were made from Accused 2’s
cell phone while Accused 2 was in custody and
being interviewed by
Dlamini. This evidence supports the version of Dlamini that Accused
2’s phone was used to call the number
that allegedly belongs to
Accused 3 (i.e. 083 404 6958).
75.
The
State also presented evidence of the cell phone records of what it
alleged were the cell phone numbers owned, used or possessed
by
Accused 1 and 2, as well as that which it claimed belonged to or was
used by Accused 3. The only aspect of the evidence that
was
challenged was that concerning ownership, usage or possession of the
cell phones containing the SIM cards bearing the relevant
numbers.
The relevant numbers and their alleged users or owners are:
Telephone number
Owner/possessor/user
082 809 0809
Accused 1
Found in the bakkie at the
scene when Accused 1 was arrested
083 994 2285
Accused 1
Found in the bakkie at the
scene when Accused 1 was arrested
072 869 0716
Accused 2
Admits that the number
belongs to him
082 586 6989
Accused 1
Admits that the number
belongs to him
078 371 2920
Accused 2
Admits that the number
belongs to him
083 404 6958
Accused 3
Denies he owned, possessed or
used this number
76.
On
1 October 2012, two days before the robbery and murder took place,
the alleged communication between the three accused is reflected
in
the record of Accused 2’s number as:
1 October 2012
Time
Number of caller and where
call was made from if caller was Accused 2
Number of receiver
and where Accused 2 was if he was recipient
Length of call in seconds
8:22:30
083 404 6958 (Acc 3)
072 869 0716 (Acc 2) Thabo
Ntsako
56
12:01:39
072 869 0716 (Acc 2) Jeppe St
083 404 6958 (Acc 3)
13
14:00:44
072 869 0716 (Acc 2) Mint Rd
083 404 6958 (Acc 3)
13
14:05:29
083 404 6958 (Acc 3)
072 869 0716 (Acc 2) Newtown
17
14:07:26
072 869 0716 (Acc 2) Newtown
St
083 404 6958 (Acc 3)
18
14:10:26
072 869 0716 (Acc 2) Mint Rd
083 404 6958 (Acc 3)
21
15:03:14
083 404 6958 (Acc 3)
072 869 0716 (Acc 2) Kerk St
35
15:11:50
072 869 0716 (Acc 2) Kerk St
083 994 2285 (Acc 1)
71
17:14:28
083 994 2285 (Acc 1)
072 869 0716 (Acc 2)
Doornfontein
17
17:39:33
083 994 2285 (Acc 1)
072 869 0716 (Acc 2) Risana
30
20:11:23
083 994 2285 (Acc 1)
072 869 0716 (Acc 2) Thabo
Ntsako
54
21:02:15
083 994 2285 (Acc 1)
072 869 0716 (Acc 2) Thabo
Ntsako
196
77.
Relying
on this record, the State alleges that Accused 2 and Accused 3
communicated with each other on seven (7) occasions on 1
October 2012
between the times 08:11:30 and 15:03:14 while Accused 1 and Accused 2
were in communication on five (5) occasions
between the times
15:11:50 and 21:02:15 and some of these calls were lengthy. When
questioned as to who he communicated with at
that time, if it was not
Accused 3, Accused 2 claimed that he cannot remember who it was.
78.
On
2 October 2012, one day before the robbery and murder took place, the
alleged communication between the three accused is reflected
in the
record of Accused 2’s number as:
2 October 2012
Time
Number of caller and where
call was made from if caller was Accused 2
Number of receiver
and where Accused 2 if he was recipient
Length of call in seconds
8:15:33
083 994 2285 (Acc1)
072 869 0716 (Acc 2) Mayberry
Park
32
10:12:35
072 869 0716 (Acc 2) Jeppe St
083 404 6958 (Acc 3)
2
10:13:22
072 869 0716 (Acc 2) Wolhuter
St
083 404 6958 (Acc 3)
49
10:14:38
083 404 6958 (Acc 3)
082 869 0716 (Acc 2) Hartland
Rd
34
10:15:
42
072 869 0716 (Acc 2) Fox St
083 994 2285 (Acc 1)
14
10:27:17
072 869 0716 (Acc 2) Noord St
083 404 6958 (Acc 3)
28
10:45:45
083 404 6958 (Acc 3)
072 869 0716 (Acc 2) Noord St
25
10:47:40
083 404 6958 (Acc 3)
072 869 0716 (Acc 2) Noord St
26
11:36:50
083 404 6958 (Acc 3)
072 869 0716 (Acc 2) Noord St
SMS
12:09:24
072 869 0716 (Acc 2) Plein St
083 404 6958 (Acc 3)
38
19:22:20
083 404 6958 (Acc 3)
072 869 0716 (Acc 2) Noord St
24
19:38:18
072 869 0716 (Acc 2) Thabo
Ntsako
083 404 6958 (Acc 3)
38
19:42:10
083 404 6958 (Acc 3)
072 869 0716 (Acc 2) Sali
Section
37
79.
The
State claims that this portion of the record shows that Accused 2 and
Accused 3 communicated with each other on eleven (11)
occasions on 2
October 2012 between the times 08:15:33 and 19:42:10 while Accused 1
and Accused 2 were in communication on two
(2) occasions between
those times. Again, when questioned as to who he communicated with at
that time, if it was not Accused 3,
Accused 2 claimed that he cannot
remember who it was.
80.
On
3
October 2012, the day the robbery and murder took place, the alleged
communication between the three accused is reflected in the
record of
Accused 2 number as:
3
October
2012
Time
Number of caller and where
call was made from if caller was Accused 2
Number of receiver
and where Accused 2 if he was recipient
Length of call in seconds
12:02:43
083 404 6958 (Acc 3)
072 869 0716 (Acc 2) Jeppe
16
12:14:22
083 994 2285 (Acc 1)
072 869 0716 (Acc 2) Jeppe
10
12:22:16
083 404 6958 (Acc 3)
072 869 0716 (Acc 2) Jeppe
40
12:25:37
072 869 0716 (Acc 2) Flora
Centre
083 404 6958 (Acc 3)
10
13:37:19
072 869 0716 (Acc 2) Flora
Centre
083 404 6958 (Acc 3)
2
13:41:10
072 869 0716 (Acc 2) Flora
Centre
083 404 6958 (Acc 3)
14
16:39:13
083 404 6958 (Acc 3)
072 869 0716 (Acc 2) Jeppe
24
22:29:50
083 404 6958 (Acc 3)
072 869 0716 (Acc 2) Jeppe
34
81.
If
the State’s contentions as to ownership, possession or usage
are correct, this record shows that on the day of the robbery
between
12:02:43 and 13:41:10 there was six (6) calls between Accused 2 and 3
and one (1) call between Accused 1 and 2. Two of
those calls occurred
while Accused 2 was in Flora Centre, which, as we know, is where the
robbery took place. They occurred at
13:37:19 and 13:41:10.The
robbery took place at or around 13H45. Regarding the calls made by
the number belonging to Accused 2
to the number allegedly belonging
to Accused 3, Accused 2 claimed that his phone was in his bakkie
which was in the possession
of Accused 1, while he was in central
Johannesburg. Importantly, this time he did not claim that he did not
know who he called.
Previously, in relation to the alleged telephone
number of Accused 3, Accused 2 admitted to having made the calls or
having received
the calls from that number but claimed that he could
not recall who he called or who called him.
The evidence of Dlamini
82.
Dlamini
testified that after the robbery Accused 2 called Accused 3 or
received calls from Accused 3, but this time he used the
number 078
371 2920 and not the number 072 869 0716. According to Dlamini he
contacted Accused 2 on the 072 869 0716 number sometime
after the
robbery and arranged for Accused 2 to visit the police station to
collect his motor vehicle. Accused 2 agreed to do so,
but failed to
turn up at the appointed time. Thereafter Accused 2 began using the
078 371 2920 number and not the 072 869 0716
number. He stated that
each time he called the 072 869 0716 number he found that it had been
switched-off. He only discovered that
Accused 2 began using the 078
371 2920 number after he arrested Accused 2 on 12 November 2012 when
he found Accused 2 having a
cell phone with a SIM card bearing this
number. Accused 2 admitted that this was one of the numbers he used.
Documentary evidence
83.
Having
secured the records of the usage of the 078 371 2920 number the State
alleges that Accused 2 called or received calls from
Accused 3 on the
following occasions:
4 October 2012
Time
Number of caller
Number of receiver
Length of call in seconds
12:31:05
078371 2920 (Acc2)
083404 6958 (Acc3)
16
This was the day after
the robbery. Then on 12 November 2012 Accused 2 was arrested. He was
interviewed on 13 November 2012. During
this interview he told
Dlamini that Accused 3’s number is 083 404 6958. The number was
stored on his handset. In the presence
and on the instruction
ofDlamini he used the same handset to dial the number, but there was
no response. The record shows for that
day the following:
13 November 2012
Time
Number of caller
Number of receiver
Length of call in seconds
04:17:59pm
078 371 2920 (Acc 2)
083 404 6958 (Acc 3)
11
04:23:03pm
078 371 2920 (Acc 2)
083 404 6958 (Acc 3)
11
04:38:37pm
078 371 2920 (Acc 2)
083 404 6958 (Acc 3)
65
04:40:59pm
083 404 6958 (Acc 3)
078 371 2920 (Acc 2)
25
04:45:59pm
083 404 6958 (Acc 3)
078 371 2920 (Acc 2)
79
The last two calls were
made by Accused 3 to Accused 2. According to Dlamini, he cannot say
if they spoke during calls 2, 3, 4 and
5 as he had left the room by
then. He only remained in the room when the first call was made.
84.
The
importance of the usage records of the number 078 371 2920 is
evidence that confirms Dlamini’s testimony that he instructed

Accused 2 to call Accused 3, and that this was done while Accused 2
was in his presence. As concerns the name Mlenzana, Dlamini’s

testimony that this is the name by which he called Accused 3 when
visiting the Boksburg Prison and when addressing him thereafter,
was
denied by Accused 3 during his cross-examination of Dlamini. The
issue concerning its veracity is dealt with later.
The admission of the hearsay evidence
85.
At
the close of the State’s case it applied to have certain
hearsay evidence admitted. The hearsay evidence concerned Accused
2
and 3. The application was brought in terms of s 3 of the Law of
Evidence Amendment Act 45 of 1988 (the LEAA). The application
was
opposed by both Accused 2 and 3.
86.
Accused
3 opposed the application. This was on the basis that the hearsay
evidence was damning of him without him being given an
opportunity to
challenge it by cross-examining the persons from whom the information
was sourced, i.e. Eddie, Prince and Accused
2. However, before
deciding the issue we were informed by Mr Tlasi, representing Accused
2, that Accused 2 would most certainly
be testifying in the main
trial.  Thereafter, argument for and against the reception of
the said evidence was presented. After
hearing argument, I decided
that the hearsay received from Accused 2 was temporarily admitted as
evidence, but that received from
Eddie and Prince was not admitted.
87.
In
my view, the facts and circumstances of the case dictated this to be
the only just and fair way to approach the matter. The evidence
of
Dlamini that he received the information about the number 083 404
6958 from Accused 2 was supported by the evidence of the records
of
the calls made from the phone of Accused 2 after his arrest, and
during the time he was in the presenceof Dlamini.
88.
The
decision to admit the evidence was taken in terms of s 3 of the LEAA.
The relevant portions of s 3 of the LEAA reads:
“
(1)
Subject to the provision of any other law, hearsay evidence shall not
be admitted as evidence
at criminal or civil proceedings, unless-
...
(b)
the person upon whose credibility the probative value of such
evidence depends, himself
testifies at such proceedings; or,
(c)
the court having regard to-
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the personupon whose
credibility the probative
value of such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence might
entail;
(vii)
any other factor which should in the opinion of the court be taken
into account,
Is
of the opinion that such evidence should be admitted in the interests
of justice.
(2)
The provisions of subsection (1) shall not render admissible any
evidence which is
inadmissible on any ground other than that such
evidence is hearsay evidence.
(3)
Hearsay evidence may be provisionally admitted in terms of subsection
1(b) if the
court is informed that the person upon whose credibility
the probative value of such evidence depends, will himself testify in
such proceedings: Provided that if such person does not later testify
in such proceedings, the hearsay evidence shall be left out
of
account unless the hearsay evidence is admitted in terms of paragraph
(a) of subsection 1 or is admitted by the court in terms
of paragraph
(c) of that subsection.
”
89.
Having
regard to these subsections, it is my view that in the light of the
fact that I was informed that Accused 2 would be testifying
it would
be appropriate to admit the hearsay evidence temporarily. Accused 3,
with vociferous support from the attorney of Accused
2, contended
that it was irregular and unlawful for this court to temporarily
admit the evidence. In support of this contention
they relied upon
the judgment of the CC in
Molimi.
[9]
In that
case, the CC, per Nkabinde J, endorsed the finding of the SCA in
S
v Ndhlovu and Others
[10]
which
held that:
“
...(1)
the reception of the hearsay evidence must not surprise the accused;
(2) the reception should not come at the end of the
trial when the
accused is unable to deal with it; and (3) that the accused must
understand the full evidentiary ambit of the case
against him or
her.
”
[11]
90.
According
to Accused 3 it was not open to this court to temporarily admit the
hearsay as it would result in him not being made aware
of what case
he should meet. I do not read
Molimi
to be saying that the temporary admission of hearsay is prohibited at
all times. This cannot be, for the simple reason that section
3(3) of
the LEAA certainly allows for such evidence to be provisionally
admitted. What
Molimi
and
Ndhlovu
warned against is the fact that the temporary admission left the
accused in an uncertain stage right up to end of the trial. The

accused must at least know before s/he considers whether to testify
or not whether the evidence has been finally admitted. This
is
particularly so if the person upon whose credibility the probative
value of such evidence lay had not testified before the accused
was
required to elect whether to testify or not. The importance of this
to the accused is obvious. The accused needs to know if
it is finally
admitted so that s/he can decide how to structure her/his evidence in
order to meet the case made by the State. The
case would be
significantly different if hearsay evidence is admitted than if it is
not. This, however, does not mean that the
evidence cannot be
temporarily admitted. The finding of the CC in
Molimi
does not detract from this. The CC did not in
Molimi
declare s 3(3) to be unconstitutional for violating the right of an
accused to a fair trial. In
Ndlovhu
the SCA found that:
“
The
provisional admission of hearsay in the situation the statute
envisages is procedurally unexceptionable and its practical value
in
rendering court proceedings coherent should not be
underestimated.
”
[12]
The CC did not disagree
with this. All it did was endorse what
Ndlovhu
held which is
that:
“
...
an accused cannot be ambushed by the late or unheralded admission of
hearsay evidence. The trial court must be asked clearly
and timeously
to consider and rule on its admissibility. This cannot be done for
the first time at that end of the trial, nor in
argument, still less
in the court’s judgment, nor on appeal. The prosecution before
closing its case, must clearly signal
its intention to invoke the
provisions of the Act, and before the State closes its case, the
trial Judge must rule on the admissibility,
so that the accused can
appreciate the full evidentiary ambit he or she faces.
”
[13]
91.
Thus,
in my view, the submission of Accused 3 that the provisional
admission of the hearsay is disallowed and that the court must
decide
to admit it finally, is not supported by the finding in
Molimi
.
In this case the State made it patently clear that it would be
relying on the hearsay evidence of Dlamini and asked the court
to
provisionally admit it in terms of s 3(1)(b) read with s 3(3) of the
LEAA. After closing its case, it asked the court to finally
rule on
the admissibility in terms of s 3(1)(c). The approach adopted by the
State was correct.
92.
In
our case, the declarant of the statements, Accused 2, testified. He
disavowed the statements. Accused 3 was given a full opportunity
to
cross-examine him. Accused 2’s disavowal was not persuasive. He
was not able to explain who he called so many times if
it was not
Accused 3. His explanation that he did not make the call during the
interview was also unconvincing. After Accused 2
testified and closed
his case, I made it clear to Accused 3 that the hearsay evidence of
Dlamini regarding the name by which he
was known and his cell phone
number was finally admitted. This was done to ensure that Accused 3
was not left in a state of uncertainty
as to whether the evidence
would be taken into account by the court or not. The approach adopted
is, in my view, consistent with
the findings in
Molimi
and
Ndlovhu
.
The approach adopted was designed to ensure that Accused 3 was made
aware of “
the
full evidentiary ambit he faces,
”
before he was required to present the testimony he relied upon to
meet the case of the State.
The relevance of the evidence
93.
The
case against Accused 3 is based on the evidence of the cell phone
records and on his statement. Firstly, on the cell phone it
is the
finding of this court that Accused 3 was the holder and user of the
number 083 404 6958. Though he denied this, his denial
must be
examined in the light of all the facts presented. The evidence that
it was supplied to Dlamini by Accused 2 was not in
any way
discredited. In fact, it was supported by objective and
incontrovertible evidence of the cell phone records of Accused
2’s
number, in particular the number 078 371 2920.
94.
Dlamini’s
evidence that Accused 3 is known as Mlenzana had also not been
discredited in any meaningful way. Dlamini stated
that he was told
that Accused 3 is known as Mlenzana, and that in his dealings with
Accused 3 he referred to Accused 3 as Mlenzana
and Accused 3 did not
object, nor did he fail to respond each time he was referred to by
this name.
95.
While
Accused 3 sought to have the hearsay aspect of this evidence declared
inadmissible, he was unable to deal with the aspect
that Dlamini in
his (Dlamini’s) interactions with him, referred to him as
Mlenzana and he always responded to this name.
The failure of Accused
3 to testify means that this evidence is uncontroverted. In the
result, I find that Accused 3 was the user,
or the possessor and
user, of the number 083 404 6958 and that he was known by the name
Mlenzana.
The case against Accused 3
96.
The
cell phone records of the numbers used by Accused 2 and this number
(083 404 6958) demonstrate that there was extensive communication

between the Accused prior to the robbery, during the robbery and even
after the robbery. Accused 2 was unable to explain why he
made so
many calls to Accused 3. His version that he cannot recall who he
called was disingenuous. Not only did he make numerous
calls to
Accused 3 prior to and during the robbery, he also made three calls
to Accused 3 while he was in custody and while he
was in the presence
of the police. His version that he did not know Accused 3 was,
therefore, contrived, as was his denial that
he gave the 083 404
6958 number to Dlamini.
97.
The
statement of Accused 3 indicates in no uncertain terms that he agreed
to transport Accused 1 and Accused 1’s friends in
a Quantum to
the Flora Centre and waited for them while they went inside. About 20
minutes later, they came back and Accused 1,
while driving the
bakkie, got involved in a shoot-out with the deceased. He saw some of
the persons he transported having guns
and a black bag containing
money. He drove them away and was paid R1 800-00 for his role as the
driver of the Quantum. This then
is the case made out against Accused
3.
The versions of the Accused
Accused 1
98.
Accused
1 testified that he was walking in Florida in the vicinity of the
Centre on 3 October 2012 during lunch time in order to
meet with his
girlfriend, who is since deceased. While walking he heard people
screaming and saw them running. Before he could
realise what was
happening he got shot in the back of his head. He collapsed and lost
consciousness. He only regained consciousness
when he awoke in
Leratong. He does not know Accused 2 or 3. He did not borrow the
bakkie of Accused 2 for that day. He was definitely
not driving the
bakkie of Accused 2 as he cannot drive. Neither Accused 2 nor 3 know
where he works or lives. He did not give a
statement to Dlamini on 4
October 2012 as he was unconscious at the time. He did not own,
possess or use the cell phones found
in the bakkie at the time of the
accident.
99.
In
the light of all the evidence presented by the State his version is
incredulous. He was faced with irrefutable evidence that
he was
caught red-handed, and the way he chose to deal with this was by
claiming that he lost consciousness and has no recollection
of what
happened. However, he was unable to deal with the evidence of the
State that he was arrested after he came out of the bakkie
or that
Accused 2 claimed that he had possession of the bakkie. That the
bakkie was used in the robbery, and that the person who
drove it was
shot through the back window of the bakkie in the left of his head,
remained unrefuted. Accused 1 was unable to explain
how it was that
the person who was shot in the back of the head and who drove the
bakkie into a wall suffered the same injury as
himself who, according
to him, happened to be walking by at the time. His claim that he lost
consciousness until he awoke in Leratong
was contradicted by the
written record of Helen Joseph Hospital which states:
“
conscious
with history of gun shot on head
.”
Upon being shot he was immediately taken to Helen Joseph and only
after he was stabilised was he transferred to Leratong.
Hence, he was
conscious from the moment he was admitted to hospital which was
immediately after he was shot. While claiming not
to know Accused 2,
he could not explain why the cell phone having a SIM card bearing the
number found in his possession at the
time of his arrest was used to
contact the number used by Accused 2.
100.
I
have no doubt that his entire version was nothing short of an
expressio
falsi
.
Accused 2
101.
Accused
2’s version is that he was approached by Accused 1 on 3 October
2012. Accused 1 requested that he lend him his bakkie
as Accused 1
wanted to transport goods. He agreed to do so. He knew Accused 1 as
someone who worked at a Taxi Rank, but would on
occasion meet him at
a car wash. He agreed to lend the bakkie to Accused 1 who had
promised to bring it back that same afternoon.
When, by the next day,
his bakkie was not returned, he first went by himself and then with
his father to look for Accused 1 at
the Kagiso Taxi Rank. There he
met one of the taxi drivers, whose identity he is unaware of, who
told him that he had heard that
Accused 1 was involved in an accident
the day before. He was not given any details of the accident. He left
the Taxi Rank thereafter.
He made no further enquires about Accused 1
or about his bakkie. He just waited for his bakkie to be returned by
Accused 1. Only
when he was arrested on 12 November 2012, which was
five weeks later, had he learned that his bakkie was used in a
robbery and
that it was held by the police ever since. He claimed
further that when Accused 1 took the bakkie he had left his cell
phone in
the bakkie. That cell phone was returned to him later that
day by an unknown person who told him that Accused 3 had asked him
(the
unknown person) to give the cell phone to him. He was told that
his bakkie would be returned the next day. He cannot recall at what

time the cell phone was returned to him just that it was before
sunset.
102.
He
denied knowing Accused 3 until they first appeared together in court
on the present indictment. He denied giving Dlamini a statement
as
well as informing Dlamini that Accused 3 is known as Mlenzana and
that Accused 3’s cell phone number was 083 404 658.
103.
At
first he denied leaving Johannesburg after the robbery, but later,
when confronted with the evidence of the record of his cell
phone, he
admitted to having left for Kwazulu-Natal where he attended a
traditional ceremony which took place over a few days.
He denied this
trip was taken in the quest to evade arrest.
104.
He
claimed that his bakkie was his only source of income. He used it to
transport goods on behalf of clients and he hired it out
for a fee.
He did not agree on a price with Accused 1 when he lent it to him on
3 October 2012.
105.
He
dealt with the identification of him by Eugela as one of the
perpetrators as they left the Flora Centre, and the person who had

discharged the firearm he was holding, by obliquely claiming that he
was seen by many people before the Id parade commenced. The
approach
adopted by him failed to diminish the value of Eugela’s
evidence, which included the pointing out at the Id parade.
106.
Accused
2 was unable to explain why, if he was dependent on his bakkie for
earning a living, he lent it to Accused 1 rather than
hiring it out
to him. Furthermore, he did not explain why he made no attempt to
retrieve it since being taken by Accused 1 on 3rd
October 2012. His
attempt to explain away the usage of his cell number while it was in
the vicinity of the Flora Centre at the
time of the robbery did not
make sense. He could not explain why only his cell phone but not his
bankcard or his driver’s
licence was returned to him by the
unknown person. He also could not say at what time this was returned
to him. His explanation
as to why he telephoned the number of Accused
3 so many times on the 1
st
and 2
nd
October 2012 was a simple “
I
cannot remember
”.
He also could not explain who it was that he called, if it was not
Accused 3. It is noteworthy that this was not just one
isolated call.
It was many calls, and more importantly,these were to the same number
that was called from his number at the time
the robbery was in
progress. He could not explain why he was calling the same number at
the time that the robbery was in progress.
107.
Like
Accused 1, Accused 2, too, gave a version that was not reasonably
possibly true, and in my view it was nothing but an
expressio
falsi
.
Accused 3
108.
Accused
3 elected not to testify. So, apart from challenging the evidence of
the State through the cross-examination of Dlamini
and any other
relevant witness(es) he failed to controvert the evidence against
him.
109.
The
statement of Accused 3 and the evidence of the cell phone records of
the numbers used by Accused 2 indicate, without any doubt,
that
Accused 3 was involved in the robbery. He was called on numerous
occasions by Accused 2 on the 1
st
,
2
nd
and 3
rd
October 2012 prior to the robbery. On the 3
rd
October, according to the statement, he was at the Flora Centre
waiting in the Quantum while the persons he transported, as well
as
Accused 1, went to conduct the robbery. According to the cell phone
records, during this time he called or received calls from
Accused 2,
who was one of the perpetrators with a firearm which was discharged
inthe Flora Centre in order to ensure that the perpetrators
received
no resistance from anyone. Accused 3’s failure to deal with
this evidence means that in these circumstances the
only inference
that can be drawn is that he was party to the robbery, and that his
involvement commenced, at the very least, from
1 October 2012 and
ended with him ensuring that the other perpetrators were able to flee
with the money they unlawfully took from
the Post Office. He enjoyed
the fruits of the robbery by receiving R1 800-00 for the role he
played. As his involvement took place
prior to 3 October, the
ineluctable inference is that he must have been aware that firearms
and ammunition were to be used during
the robbery. His decision to
continue to participate in the robbery, albeit as the driver of the
getaway vehicle, indicates that
he fully associated himself with
their use. This conclusion is bolstered by the fact that according to
his statement he saw the
shoot-out between Accused 1 and the
deceased. He saw a firearm being held by one of the perpetrators in
the Quantum as he drove
them away after they had committed the
robbery. On these facts it can only be inferred that not only did he
foresee the possibility
of the use of firearms during the robbery,
but also that he was actually aware that firearms were to be used to
execute the robbery.
While the robbery was in progress he could have
dissociated himself from it by driving off, but failed to do so.
Instead, he waited
for the persons who conducted the robbery in order
to be able to transport them so that they could avoid capture and
getaway with
the stolen money. While doing so, he was aware that one
of the perpetrators had a firearm in his possession.
110.
This
does not detract from the fact that when he saw the shoot-out between
Accused 1 and the deceased, he did not stop and wait
to see the
outcome but instead chose to flee together with the other
perpetrators. His decision to flee was not an act of dissociation

from the actions of Accused 1, but rather an act to prevent himself
and the other perpetrators from being captured. He must have
foreseen
the possibility of the firearms being used to evade capture.
[14]
Accused
1 was not carrying the R5 rifle for the benefit of himself. It was
done as part of the group’s plan and activity of
robbing the
Post Office and was to be used to overcome all resistance, including
any attempt to capture him or any of the other
perpetrators. This is
manifested in the fact that in the bakkie cash taken from the post
office was found. Accused 1 was in the
process of escaping with the
money which he held on behalf of all the perpetrators, including
Accused 3. In these circumstances
the only inference to be drawn is
that Accused 1 carried the R5 rifle on behalf of the entire group of
perpetrators, including
Accused 3. The same applies to possession of
the handgun by Accused 2. He possessed it in the course and scope of
carrying out
the objective of the group to execute the robbery and to
evade arrest. In fact, he used it while the group were in the process
of making their getaway and did so to ensure that they met no
resistance.
Conclusion on the merits
111.
On
a conspectus of all the evidence it is found that the following facts
have been proven beyond reasonable doubt:
111.1.
On
3 October 2012 at or about 13h45 the Post Office in the Flora Centre
was robbed of cash by a group of armed men.
111.2.
The
perpetrators held up the cashiers, other personnel and customers who
were in the Post Office at the time. Some of them brandished

firearms, one of which was an R5 Rifle. They fired some shots, but
nobody was injured. After helping themselves to the cash in
the
amount of approximately forty thousand rands (R40 000.00) from the
tills the perpetrators exited the Post Office and walked
towards the
exit of the Centre.
111.3.
While
walking out of the Centre, Accused 2 was seen, and later identified,
by one of the security personnel who at the time was
standing within
a few metres of Accused 2. Accused 2 was with his accomplices, had a
firearm in his hand, pointed it in the air
and discharged it in order
to frighten everyone in the vicinity. This caused everyone to move
away from Accused 2 and his accomplices.
All the perpetrators,
including Accused 2 then exited the Centre.
111.4.
They
climbed into two vehicles: the white bakkie and a Quantum. The two
vehicles took off at high speed. Moments later, and within
a
kilometre of the Centre, the deceased travelling on a motor cycle saw
the bakkie and gave chase. The driver of the bakkie was
Accused 1.
While still travelling, the deceased and Accused 1 shot at each
other.The deceased got shot in the stomach. He collapsed
and later
died from his wounds. Accused 1 was shot in the back of his head; the
bullet had penetrated the back windshield before
hitting the driver,
while he was driving the bakkie. The bakkie collided with a taxi,
continued to travel, swerved off the road
and eventually collided
into a wall where it came to a halt. Accused 1 came out. He held a R5
rifle in his hand. He tried to run
but was unable to do so. Instead
he staggered for a step or two and collapsed on the ground with the
R5 rifle falling beside him.
He was immediately arrested by Mongwe
who, by this stage, had appeared at the scene. Accused 1 was
transported to the Helen Joseph
Hospital for medical treatment, and
after receiving the necessary treatment to ensure that his life was
no longer in danger he
was transported to Leratong the next day.
111.5.
Upon
his arrival at Leratong Accused 1 was interviewed by Dlamini. He made
a statement. The statement does not implicate him in
the crimes for
which he was arrested.
111.6.
The
bakkie was searched and the contents taken by the police. The
contents consisted of,
inter
alia
:
111.6.1.
two
cellular telephones – one having a SIM card bearing the number
082 809 0809, and one having a SIM card bearing the number
083 994
2285.;
111.6.2.
a
bank card in the name of Accused 2;
111.6.3.
the
driving licence of Accused 2;
111.6.4.
a
white cap belonging to Accused 1;
111.6.5.
cash;
111.6.6.
a
cellular telephone charger;
111.6.7.
spent
cartridges released from the R5 rifle;
111.6.8.
ammunitionfor
the R5 rifle.
111.7.
The
bakkie had false registration number plates.
111.8.
The
bakkie belonged to Accused 2.
111.9.
Accused
2 was arrested on 12 November 2012. He had in his possession a
cellular telephone containing a SIM card bearing the number
078371
2920. The cellular telephone number belonged to and was used by him.
On 13 November 2012 he was interviewed by Dlamini,
where he made a
statement about his involvement in the robbery at the Centre. He gave
the number 083 404 6958 to Dlamini and said
it belongs to Accused 3.
On Dlamini’s instructions and In Dlamini’s presence,
using his own cell phone he called the
number.
111.10.
On
a number of occasions prior to and during the robbery,Accused 2
called Accused 3 on the number 083 404 6958.
111.11.
Accused
3 was arrested while he was held in custody on another charge. He
made a statement to Naidoo where he furnished information
about his
involvement in the robbery.
111.12.
Accused
3 drove the Quantum to the Flora Centre and transported some of the
perpetrators there. He waited in the Quantum while the
robbery was in
progress. Once the robbery was completed some of the perpetrators got
into the Quantum and he drove-off with them.
As he drove-off there
was an exchange of gunfire between Accused 1 and the deceased. He did
not wait to see the outcome of the
shootout. Instead, together with
the other perpetratorshe fled the scene. As payment for his
involvement he received R1 800.00
from those that conducted the
robbery, as he merely drove them to the Flora Centre and waited for
them while they conducted the
robbery and when they returned he only
drove them away. His role in the robbery was that of the driver of
one of the getaway vehicles.
111.13.
As
his involvement in the robbery preceded the actual robbery, and as he
was communicating with Accused 2 during the robbery, he
must have
known that his co-perpetrators possessed guns and ammunition which
they were to, and did, use in the robbery.
112.
The
R5 rifle was used by Accused 1 to shoot and kill the deceased was a
5.56 X 45mm calibre LEW Model R5 Assault Rifle. None of
the Accused
took issue with the State’s claim that in contravention of s
4(1)(f)(i) of the Firearm Control Act of 60 of 2000
(the FCA), the
mechanism had been altered so as to enable the discharging of more
than one shot with a single depression of a trigger,
and that in
contravention of s 4(1)(f)(iv) of the FCA the serial number of this
R5 rifle had been removed without the permission
of the Registrar.
Finally, none of the Accused took issue with the submission of the
State that the R5 rifle was thus a prohibited
firearm and its
possession by Accused 1 was in breach of s 4(1)(a) of the FCA.
113.
None
of the Accused took issue with the State’s claim that the
possession of ammunition by Accused 1 and 2 was in contravention
of s
90 of the FCA read with provisions of ss 1, 117, 120(1)(a) and 121,
read with schedule 4 of the FCA and further read with
s 250 of the
CPA.
114.
None
of the Accused took issue with the State’s claim that the
possession of the handgun by Accused 2 was in contravention
of s 3
read with ss 1, 117, 120(1)(a) and 121 read with schedule 4 of the
FCA and further read with s 250 of the CPA.
115.
On
the basis of the facts relayed above, the State has proven beyond
reasonable doubt that:
115.1.
Accused
1 had shot and killed the policeman. He had been caught red-handed.
He is, accordingly guilty on count 1 of the indictment.
115.2.
Accused
1 and 2 played an active partin the robbery and are therefore guilty
on count 2 of the indictment.
115.3.
Accused
1 was in unlawful possession of a prohibited firearm in terms of s
4(1)(a) of the FCA as spelt on in count 3 of the indictment.
He held
this firearm on behalf of the entire group of perpetrators, including
Accused 2 and 3. Accordingly, they are all three
guilty on count 3 of
the indictment.
115.4.
Accused
1 and 2 unlawfully possessed ammunition and therefore are guilty on
count 4 of the indictment.
115.5.
Accused
2 was aware that Accused 1 was in possession of a firearm that might
be discharged during the course of the robbery, and
that if it was
discharged a fatality could result. This did occur. Accused 2 had
reconciled himself with that possibility. The
actions of Accused 1
were part and parcel of the robbery. He is guilty of murder and is
therefore found guilty on count 1 of the
indictment.
115.6.
Accused
1 and Accused 3 were aware that Accused 2 was in possession of a
firearm that might be discharged during the course of the
robbery,
and that if it was discharged a fatality could result. The actions of
Accused 2 were part and parcel of the robbery, hence
he held the
firearm on behalf of the entire group of perpetrators. Accordingly,
they are all guilty on count 3 of the indictment.
115.7.
Accused
3 partook in the robbery as the driver of the vehicle that drove some
of the perpetrators to the Centre. He waited for them
while they
conducted the robbery and drove some of the perpetrators away so that
they were all able to flee.  He is guilty
on count 2 of the
indictment.
115.8.
Accused
3 must have known that some of the perpetrators carried firearms,
which they intended to use to carry out the robbery. He
must have
been aware that Accused 1 had the R5 rifle as well as ammunition
which were to be used during the robbery should the
need arise. The
holding of the R5 rifle by Accused 1 was for and on behalf of the
entire group of perpetrators, including Accused
3. Accused 3 is
therefore guilty on counts 3 and 4 of the indictment.
115.9.
As
Accused 3 had deliberately left the scene where the shooting was
taking place and had done so as soon as the shooting had commenced,

in the light of his failure to testify the only inference to be drawn
is that he fled not to dissociate himself from the conduct
of Accused
1 but to procure his and the other perpetrators escape. From the
outset he foresaw the possibility of the use of firearms
during the
course of the robbery. He associated therewith by continuing to be
part of the robbery right until he, together with
the other
perpetrators, succeeded in fleeing. Finally, he shared in the spoils
of the robbery by getting R1 800.00 for his efforts.
The actions of
Accused 1 were part and parcel of the robbery in which he took an
active part. He is, therefore, guilty on count
1 of the indictment.
115.10.
As regards count 5 of the indictment, in the light of the possession
of   the handgun by Accused 2, for the reasons
mentioned
above, all three Accused are guilty of this charge.
116.
Hence,
all three Accused are found guilty on all counts of the indictment.
Vally
J
Judge of
the Gauteng High Court, Johannesburg Local Division
Palm
Ridge
29
October 2014
I
concur:
Mr
Norman (Assessor)
I
concur:
Ms
Letitia Kelly (Assessor)
Appearances:
For
the State : Adv Nerisha Naidoo
For the
Accused 1
: Adv M P Maphoto
Instructed
by : Legal Aid Board
Accused 2 : Mr M T
Tlasi (Attorney)
Accused 3 : Adv J M
Mogotsi
Instructed by :
Legal Aid Board
Dates of hearing:
14-17, 22-24, 29-30 April 2014, 2, 5, 6 ,8 ,12
16, 21, 22 May
2014, 2-6, 10-13 June 2014,06-
09, 14, 15, 17,
20-22,24 October 2014
Date of
judgment on conviction : 29 -30 October 2014
[1]
Paragraph
9 of the 3M(m) Form contains two options regarding the state of mind
of the suspect during the interview, the one indicates,
inter
alia
,
that he was “
of
sound mind
”,
while the other indicates,
inter
alia
,
that he was “
not
of sound mind
”.
The interviewer is required to indicate which of the two statements
is applicable during the interview. In this case
Dlamini recorded
that Accused 1 was of sound mind.
[2]
Exhibit
H p 4
[3]
Exhibit
H p 14
[4]
In
terms of s 217 of the CPA, a confession has to be made to a “
peace
officer
”.
A “
peace
officer
”
is defined in
Section 1
of the
Criminal Procedure Act 51 of 1977
. A
Constable is not listed as one of those persons that qualify as
“
peace
officers
”.
[5]
This
definition was established in
R
v Becker
1929 AD 167
and was accepted in
S
v Molimi
[2008] ZACC 2
;
2008 (3) SA 608
(CC) at
[28]
[6]
R
v Becker
(
op
cit
)
at 171 - 172
[7]
S
v Yende
1987
(3) SA 367
(A)
[8]
[2008] ZACC 2
;
2008
(3) SA 608
(CC)
[9]
See
fn 8
[10]
2002 (2) SACR 325
[11]
Molimi
,
fn 8 at [17]
[12]
Fn
11, at [28]
[13]
Id.
at [18];
Molimi
,
fn 8, at [36]
[14]
See
S
v Sibeko and Another
2004 (2) SACR 22
(SCA) at [10]