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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: A58/22
In the matter between
PHELO GXASHEKA 1st APPELLANT
NDUMISO MZAWAZIWA 2nd APPELLANT
NONDODA GONIWE 3rd APPELLANT
MAWETHU MKHANGELWA 4th APPELLANT
VS
THE STATE RESPONDENT
Date of Hearing: 04 August 2023
Date of Judgment: 09 February 2024 (to be delivered via email to the respective counsel)
CORAM: NUKU J; THULARE J
_____________________________________________________________________
JUDGMENT
THULARE J
[1] This is an opposed appeal against both conviction and sentence. In the Regional Court
all t he appellants were accused 2 to 5 respectively. Accused 1, Mziwedinga Putase
(Putase) did not appeal. All accused were convicted of count one: conspiracy to commit
robbery with aggravating circumstances; only Putase and 1st appellant were convicted of
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count two: housebreaking with intent to steal and theft ; all accused were acquitted of
count three: unlawful possession of a prohibited firearm; all accused were convicted of
the alternative to court three: unlawful possession of firearms and all accused were
convicted of count four: unlawful possession of ammunition. Appellant 1 was accused 2
and having set out that background it is now convenient to refer to those who lodged the
appeal as appellants without creating any confusion. On count one all four appellants
were sentenced to 10 years imprisonment of which 2 years were suspended for 5 years
on condition that appellants were no convicted of any crime of which dishonesty and or
violence against another person was an element or the conspiracy thereto com mitted
during the period of suspension. On count 2 appellant 1 was sentenced to 4 years
imprisonment. On the alternative to count 3, appellant 1 and 3 were sentenced to 15 years
imprisonment of which 6 years were suspended for 5 years on condition that appellants
were not convicted of any crime where the use or abuse of a firearm was an element,
committed during the period of suspension. Appellant 2 and 4 were sentenced to 15 years
imprisonment of which 7 years were suspended on condition that they were not convicted
of any crime of which the use or abuse of a firearm was an element, committed during
the period of suspension. On count 4 all were sentenced to 3 years imprisonment. All the
sentenced imposed in respect of counts 1, 2 and 4 were ordered to run concurrently with
the sentences imposed on the alternative to count 3.
[2] In respect of count 1, it was submitted that the State did not prove its case beyond
reasonable doubt that the appellant were “umbrellaed” as conspirators and co-
conspirators in planning and/or conspiring to commit an offence of robbery. It was
submitted that Ndini, a section 204 witness promised benefits by the police if he testified
against the appellants, was unreliable, inconsistent, lacked credibility and that his
evidence was unsustainable to secure a version that all the appellants knew about the
arrangements by Ndini and accused Putase. In respect of count 2, it was submitted that
it was probable that it was unknown to 1
st appellant that the vehicle in which he was a
passenger was stolen. It was submitted that the State did not prove beyond reasonable
doubt that the appellants were in possession of the firearms and ammunition, individually
and jointly. In respect of sentenc e it was argued that another court would consider trial -
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awaiting incarceration as substantial and compelling circumstances. It was submitted that
the sentences were harsh and that the seriousness of the offences was overemphasized
and that the personal circumstances of the appellants were desperate and required
individualized sentences.
ON CONVICTION
[3] Arietta Evelina Williams (Williams) was a sergeant in the SAPS with 13 years’
experience and was a member of the Flying Squad and was on duty on 4 September
2014. The unit received information of a possible armed robbery in Ceres, whilst in Cape
Town at about 14H00. The information included that a Silver Etude stolen and reported
on a Harare Cas , a bakkie and five African males would be involved. She could not
remember if a Jetta was also involved. The whole shift, led by Warrant Officer Samuels
attended to the information and travelled to Ceres. Other members of the unit were
Warrant Officer Botha, Sergeant Michaels, then Constables Efta, Mb ewu and van der
Bergh. Williams travelled with Efta and Mb ewu in an unmarked Silver Golf 5, and there
were two or three other vehicles used by the others. Williams was in uniform. Williams
saw the Silver Etude at the corner of Voortrekker and a side road, Lyle. Mbewu gave the
description of the vehicle, a Silver Grey Etude and the registration number over the radio
and everyone there heard the reply that the Etude was identified as stolen. The driver of
the police vehicle put up the blue lights, sirens and instructed the driver of the Etude to
stop. As soon as the blue lights and siren went on and the driver was instructed to stop
the left passenger door opened, a man jumped out from the left back seat of the Etude
whilst it was still moving although slowly and casually started walking and the Etude drove
on. The Etude did not stop when instructed to do so. The car just rolled slowly . Williams
jumped out of the Golf and followed the man who jumped out whilst Efta and Mbewu
proceeded to the Etude. The Etude eventually came to a stop. It did not speed off.
[4] There were no people in the side street, Lyle, at the time. Ceres is a small town.
Williams never lost sight of the man. She instructed the man to lie down, which the man
did. She did not chase the man as the man obeyed her instructions to lie down. She did
not find any firearm on the man. She handcuffed him and walked with him towards the
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corner of Lyle and Pretoria road where Efta and Mbewu were with the stolen vehicle and
two suspects. The man she arrested identified himself as Ndumiso Mzawaziwa with the
1st address as 1[…] S[…] Street, Nduli, Ceres and another address as 1[…]8 H[…] Street
Mitchells Plain. The time of arrest was 16H15. When she arrived back at the Etude the
two suspects there were already in handcuffs. She was in formed by Efta and Ndeo that
they searched the vehicle and found a firearm with a magazine and two rounds of
ammunition. In court Williams could not identify the man she arrested or the two arrested
by Efta and Ndeo because of the lapse of time. She testified three years after the arrest.
According to her, she arrested a person every two to three days. It is a lot of people and
she could not remember everybody.
[5] Andry Efta was a constable also in uniform on the day. She was the driver of one of
about three vehicles in a police convoy with a total of about seven members. She tested
the Etude when they saw it. She also saw the other police vehicle in their convoy using
blue lights and a siren to stop the bakkie whilst still in Voortrekker street when she was
about to turn left. After the man alighted from the Etude, and Williams alighted from the
car she was driving, the Etude accelerated and turned from Lyle into Pretorius street and
they pulled the Etude off by boxing it in between two vehicles. Efta followed the Etude
whilst the other vehicle called as back -up overtook and blocked the Etude. There were
two people inside the Etude. She went to the driver’s side and Mbewu went to the
passenger’s side. She instructed the driver to switch off the vehicle. The driver gave her
his names and surname, which were Mziwedinga Putase. These were the names of
accused 1 in the trial at the court a quo who did not appeal.
[6] The driver was calm and co-operated. She ordered the driver out of the car. The driver
seemed not to understand her and she then took the key out of the ignition of the Etude,
opened the driver’s door and took the driver out of the vehicle and placed him on the
ground. When the driver got out of the vehicle she instructed him to lie on the ground and
read him his rights. She informed the driver that he was driving a stolen vehicle and
arrested the driver for possession of a stolen vehicle. She asked him whose vehicle was
it and the driver said the passenger was the owner of the Etude. She could see Mbewu
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on the passenger’s side and Mbewu was dealing with the passenger in front. Mbewu told
her that he found a firearm on the passenger. Mbewu arrested the passenger. When
Mbewu shouted that he found a firearm on the passenger, Efta took Put ase to the other
side where Mbewu was so that she could be able to assist Mbewu if he needed
assistance. She saw the firearm that Mbewu found, when she moved to the other side. It
was already on the ground on the pavement next to where the passenger also lay on the
ground. Other members of the police assisted Mbewu.
[7] Jerome Michaels was a sergeant in the SAPS and was one of the members of the
flying squad who received information about a possible robbery and drove to Ceres. At
Ceres Warrant Officer Samuels briefed them, which included being on a lookout for a
grey Mazda Etude and a white Isuzu bakkie. They were given the registration number of
the Etude but not of the bakkie. He noticed both vehicles in the main road in Ceres. The
vehicles were driving from the side of the location into town. The Etude was driving i n
front, followed by the bakkie. The bakkie had no canopy. He was in a marked police car,
a Ford Focus with two other members, Warrant Officers Samuels and Botha. They were
following the bakkie and he noticed two men standing in the back of the bakkie, wearing
blue work -suit jackets. The two men were standing with their backs towards the car
following the bakkie. They were about to pull the two vehicles over when the vehicles split
into two different directions. The one vehicle turned and the other drove straight. The men
at the back of the bakkie jumped off and also went in different directions. Samuels did not
go after the vehicles, but went for the men who jumped of f the bakkie. The other police
vehicles went after the two vehicles. Samuels parked the vehicle and in that moment they
lost sight of the two men. They went back to the vehicle and drove up and down town for
about five minutes. They saw the two men again walking on the road that drives out of
Ceres central business district towards the prison.
[8] The men were walking out of town by the side of the road on the pavement. In that
area on the left of the road there was the tar road, a barrier, the pavement and a fence.
The men were walking on the pavement, the one walking half a metre in front of the other
and they still had the same clothing. Samuels stopped the vehicle and they got out of the
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vehicle with their firearms drawn as they did not know i f the men were armed. He was
with Samuels and Warrant Officer Botha. When the man walking in front noticed the
police, he took his left hand to the front of his pants underneath his jacket, pulled
something out and threw that thing to the left on to the grass. Michaels could see that it
was a metal object that was thrown on to the grass. He immediately instructed both men
to go to the ground. The two men complied. Botha approached the man who threw the
object. Michaels approached the man who walked behind and searched him. He felt an
object tucked at the back of the man’s pants under the jacket. When Michaels lifted the
jacket he saw that the object was a firearm, a 9mm pistol which had a magazine and
ammunition inside. He arrested the suspect and explained him his rights. He explained
to the suspect that he was arrested for possession of an unlicensed firearm and that
anything he said may be written do wn and be used against him in court. He put the
suspect at the back of the car and put the firearm in the boot. Michaels was not sure who
picked up the object that was thrown, but that object was a firearm. He saw it on the scene
and at the police station as well. The person Michaels arrested identified himself as Odwa
Dini from Khayelitsha. The serial number of the firearm had been removed. He sealed the
firearm that he found when he searched Dini and handed it in as an exhibit in the SAPS
13. He wrote the serial numbers personally.
[9] Leonard Corney lived with his family in Khayelitsha. On 3 September 2014 he went to
sleep having locked up. He placed the keys of his vehicle, a Mazda Etude, on top of the
room divider where the television was, when he went to sleep. He had a bad dream, woke
up and went to the toilet at around past four in the morning. He saw a stranger in his
house, in the dining room who was pulling something on the tv. The screen of the tv was
already removed and was missing. The person went out of the house and ran away.
Corney’s wife cried out coming out of the room. Corney went to put on his pants. At that
time there were renovations done to the house. Corney noticed that the window was open,
but not broken. The window had been closed when they went to sleep. It appeared to
Corney that the window handle was not properly pulled down when closed. The person
got in through the window. The key to the door was on the door. The person unlocked the
door when he ran out. Corney’s car, a Mazda Etude was missing. The car had in its boot
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tiles which he had bought for renovations. Corney identified the Mazda Etude that was
recovered by the police in Ceres as his vehicle. The radio of the vehicle was missing
when he received it back from the police. He never recovered his tv and tiles. The police
did not search for any fingerprints on the scene.
[10] Patrick Pangu was a sergeant in the SAPS attached to the high jacking task team in
the provincial office stationed at Macassar. In 2014 he worked at Bellville. On 2
September 2014 he received information from an informer about a planned robbery of a
bottle store in Ceres at Jumbo Cash n’ Carry. The report was that there would be vehicles
and firearms used. The vehicles which were to be used in the robbery were a VW Jetta,
a Mazda Etude and a white double cab bakkie. He was in communication with the
informer from 2 to 4 September. He was informed that the owner of the bottle store
intended to be robbed was always carrying a firearm and the plan included shooting him
during the robbery. He was also informed of the date of the intended robbery. At the time
Pangu was working at the vehicle theft unit, and because the information involved the use
of firearms and alleged an armed robbery, he informed his commander, Colonel Hanana.
He was also there in Ceres on the day of the robbery. He was not told the names of those
involved in the planned robbery, but got to know the names during interrogation of one of
those arrested, after the arrest.
[11] On 4 September the intended day of the robbery he was in Ceres with Hanana in a
vehicle. Hanana arranged the whole operation. There were also other units. The flying
squad was there. He kept observation in town for the movements of the vehicles
mentioned. He saw the three vehicles drive in the main road through Ceres down to Nduli,
the nearby township. He did not follow the vehicles to the township but other units did and
reported back. He saw when the Jetta came back into town, driving past Jumbo Cash n’
Carry. The Jetta was full especially at the back , with some sitting on top of the others .
They were opposite Jumbo Cash n’ Carry keeping watch and saw that when the
occupants of the Jetta drove past, all the occupants were looking at Jumbo. The Jetta
drove past again and drove back to the township. He and Hanana left Jumbo and went
to park near a surgery in town. The surgery is on the way from the township. The three
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vehicles came back into town, following each other. The vehicles were followed by the
other units. He and Hanana also joined the convoy and followed behind the other units.
When they got back to Jumbo, by the time they parked there were people arrested and
lying down already. He did not arrest anyone. He only saw the Etude and the Jetta, and
not the bakkie, when they arrived. He did not know what happened to the bakkie. The
Jumbo was in the main road. The Jetta was directly opposite Jumbo and the Etude was
a little bit further ahead. He saw two others who were arrested when the two were already
at the back of the bakkie. After the arrest he spoke to all those arrested, including Ndini
who gave him information.
[12] The State applied to have the proceedings held behind closed doors and that the
identity of the witness he withheld as envisaged in section 153(1) and (2) of the Criminal
Procedure Act, 1977 (Act 51 of 1977) (the CPA). The application was opposed and the
investigating officer, Captain Alfred Benjamin Barker was called in support of the
application. Barker testified that the witness was under a witness protection programme
as his life was in danger, and that of his family. The witness as scared to be identified by
person who attend court and in the public gallery as he feared for his life. The witness
was not only a witness in protection for this case, but also in another which involved the
murder of a policeman. Barker had personally received threats with regard to the matter
involving the accused and also received information about the threat to the life of the
witness intended to be called. If the witness testified in open court in front of members of
the public, the witness may testify under fear and may not give the testimony he would
give if he was not under pressure. The witness had been an accused and had turned into
a State witness. Witnesses in protection ultimately go back into the public, as it is not a
luxury and difficult to be in the programme. No evidence was tendered by the appellants
and after arguments the application was granted.
[13] Odwa Dini (Dini) was a witness called in terms of section 204 of the CPA by the State.
He was accordingly warned by the court before he was sworn in. He knew and was friends
with Putase. Putase was a taxi driver and Dini was unemployed when they first met.
Together they previously robbed a fish and chips shop in Cape Town, a small tavern in
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Nyanga and two Somali-owned shops in Mfuleni. During the robberies, Dini used a toy -
gun whilst Putase used a real gun which Putase said he bought from Nyanga. Dini got a
call from Putase to meet in Site C in Khayelitsha, not far from the taxi rank. The meeting
was also attended by 3rd appellant, who Dini knew as Shoes, and another person called
Dumisani. Dini only came to know 3 rd appellant’s real name after they were arrested. At
the meeting Dumisani told them that Poepa from Mitchell’s Plain had a job for them, which
was a business robbery. They then drove to Mitchell’s Plain where they met Poepa, 2 nd
appellant. 2nd appellant told them that there were two places in Ceres to be robbed. It was
a money-lending business and a liquor store. They then exchanged cellphone numbers.
Dini exchanged numbers with 3 rd appellant and Putase ex changed numbers with 2 nd
appellant. The meeting ended and they dispersed.
[14] 3
rd appellant called Dini and they spoke on the phone. On one of the calls, on a
Wednesday, 3 rd appellant asked Dini if the job was still to be done. Dini referred 3 rd
appellant to Putase, but 3 rd appellant did not have Putase’s number. Dini then told 3 rd
appellant that he, Dini, will personally enquire from Putase. Putase confirmed that the job
was still to be done, and that he, Putase, had invited other people into the group, being
Mawetu and Mwande. Mawetu was 4
th appellant. The Thursday morning Putase came to
pick Dini up from Macassar to site C in Khayelitsha. Putase was driving a single cab
bakkie and was with 4
th appellant. Dini knew 4 th appellant as Wyza. Before that day he
knew the name Wyza but not the person. Putase explained to Dini that he, Putase, had
worked with 4
th appellant for a long time and that 4 th appellant had a fast car which was
to be used as a getaway car. In site C they met 5th appellant and another person who was
unknown to Dini. That person drove a white twin cab bakkie. All of them drove from site
C to Ikwezi at 4th appellant’s place. At his place, 4th appellant took out a Z88 firearm. 3rd
appellant also took out a small firearm. Putase had a small firearm, a 76.5. Dini had
previously seen the Z88 that 4
th appellant had, on Putase. The description of the firearms
that Putase had, Z88 and 76.5 as given, was how Putase described them to Dini. 4th
appellant put these firearms under a cushion on the couch. Putase had lost 2nd appellant’s
number so they had to wait for 2nd appellant to call. When 2nd appellant did not call, they
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drove to Mitchell’s Plain where they had previously met 2nd to look for him. They were
there already when he called and they met. They all drove back to 4th appellant’s place.
[15] At his place, 4th appellant took the firearms from the cushion and put them in a plastic.
4th appellant took the plastic containing the firearms and hid them underneath the bakkie
of the driver unknown to Dini, on the spare wheel. They all drove to Harare to pick up
Blacks, who is 1
st appellant. 4th appellant was driving the Jetta. On the way 4th appellant
put petrol in the Jetta. Dini and 3 rd appellant were inside the Jetta. They then drove to
Green Point. The bakkie drove behind the Jetta. 1 st appellant also got into the Jetta. In
the bakkie it was Putase, the driver and 2 rd appellant. 4th appellant had told Dini that 1 st
appellant had stolen a vehicle. The trip to Green Point was to fetch that stolen vehicle, a
Mazda Etude, from where it was hidden. At Green Point, 1st appellant and Putase got
into the Etude. 1
st appellant was driving. The convoy of three vehicles left for Ceres. It
was the E tude, the Jetta and the bakkie. Putase called 4 th appellant to report that the
Etude did not have enough petrol. The Etude and the Jetta went into the garage while the
bakkie proceeded but waited at the robots. Petrol was put only in the Etude as the Jetta
was earlier filled. The vehicles left for Ceres. On the way to Ceres, 1
st appellant drove
badly and had to be changed as a driver. Putase had to drive the Etude further.
[16] At Ceres 2
nd appellant showed them the places to be robbed. He pointed the places
out. While all remained in the vehicles. The first was Ceres Financial Corporation and the
second was a liquor business. After the pointing out the convoy left for Nduli, at 2
nd
appellant’s shack. There was a discussion about the places, and the decision was to rob
the Ceres Financial Corporation. 2
nd appellant told them that the place had a lot of money.
2nd appellant told them that when he previously robbed the place, he got R75 000-00. The
driver of the bakkie fetched the firearms from where they were hidden. 3rd appellant took
his firearm. 4th appellant gave the Z88 to Dini and 1st appellant got the 76.5. The Z88 he
received was loaded. Dini and 3rd appellant got at the back of the bakkie. The bakkie had
no canopy. 2nd appellant got into that bakkie inside the cab with the driver. Dini did not
know the driver. 4 th appellant drove alone in the Jetta. Putase drove the Etude. 1 st
appellant was a passenger in the Etude. Dini was wearing a pair of jeans and a grey top
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of an overall work suit. 3rd appellant also had an overall work suit on. The three vehicles
left Nduli on their way to the town of Ceres where they were to rob Ceres Financial
Corporation. The plan discussed for the robbery was that Dini and 3rd appellant would get
inside and point a gun at the owner. The driver of the bakkie would return to Nduli. Putase
and 1
st appellant would pick Dini and 3rd appellant from the door of the place of the robbery
and they would drive out of Ceres . The driver of the bakkie came with 4 th appellant that
day, and was always there and part of the plan. The driver of the bakkie escaped arrest
and appellant 4 told Dini that he believed that driver he was the police informer. Whilst
already at Ceres, Putase and 3
rd appellant spoke about buying fruit juices in Ceres.
[17] Dini and 3
rd appellant alighted from the bakkie and started walking towards the
targeted business. When they left the bakkie, 1 st appellant was still in the bakkie. They
saw 4th appellant, who was driving the Jetta, being arrested by the police. It was as Dini
and 3rd appellant were about to get into the gate of the centre and as 4 th appellant was
parking on the opposite side. Dini and 3 rd appellant then walked past, and did not enter
into, the targeted business. They did not run but just walked away. Dini thought the police
did not see him and 3 rd appellant as the police did not come to them at that time. They
went to the back of a big shop, hid and waited there. They hid because they saw 4 th
appellant who was with them being arrested and also because they had firearms on them.
Dini was aware that the firearms they had with them were stolen. The police drove past
and did not see Dini and 3
rd appellant. After a while, 3 rd appellant suggested that they
throw away the firearms in their possession. Dini told him that he, Dini, could not throw
the firearm away because it did not belong to him. 3
rd appellant also kept his and did not
throw it away. Dini had the firearm on his waist. 3 rd appellant had his firearm in a small
bag which he carried. They then started walking together towards Nduli outside Ceres on
the R46 road. As they were walking the driver of the bakkie called 3rd appellant and asked
where was Dini and 3rd appellant and 3rd appellant told the driver of the bakkie. Not long
thereafter the police vehicle stopped next to where Dini and 3 rd appellant were walking.
The police got out of their vehicles and pointed their firearms and Dini and 3rd appellant.
The police instructed the two to lift their hands up and go down. Dini knelt down.
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[18] 3rd appellant was in front of Dini at the time with his back towards Dini. 3rd appellant
took out his firearm from his bag and threw it away. The gun had a silver part on it and
had a magazine, which was what he saw when 4 th appellant earlier removed the
magazine and the bullets and placed both back whilst they were still in Kwezi. The police
arrested both of them and took them to the police station. At the police station Dini noted
that all of them were arrested except the driver of the bakkie and the bakkie was not
recovered. Dini gave a statement to the police and also did a pointing out. In his first
statement, Dini was not completely truthful because he was afraid of 4
th appellant. He
had heard what type of person was 4 th appellant. In the initial statement he had said 2 nd
appellant gave him the gun. He was afraid to say 4th appellant was the one who gave him
the gun. He was not scared of the other accused as he did not hear stories about them.
He did not change his statement only because he became a 204 wi tness. When he was
initially approached to become a 204 witness around September 2014, he declined. He
only agreed around March 2015. It was the investigating officer, Barker, who approached
him whilst he was in custody, in prison in Ceres. Barker told Dini that it was Dini’s first
arrest and that if he was willing to testify as a witness against the other accused and
testified the right thing Dini will be freed and will have no criminal record. Dini disputed
that Putase and 2
nd appellant were only in Ceres to buy fruit juices that day. The fruit juice
narrative was a made up story they had all agreed to say when they come to court. They
were all held in one cell at the time, including Dini. At the police station upon arrest,
however, all others were put in the same cell but Dini was held separately and he did not
know why.
[19] Dini knew Putase but not 2
nd appellant before the day that they discussed the Ceres
robbery in Mitchell’s Plain. Dini did not know where 2nd appellant was arrested. Dini knew
1st appellant as Blacks, when they met on the day of the incident when 1 st appellant
introduced himself. He did not now 1st appellant before that day. Dini was not licenced to
have a Z88 pistol, the firearm that he had and was not trained in shooting a firearm. Both
Dini and 1st appellant were given firearms in Nduli inside a shack. Dini applied for bail,
which application was dismissed. 1st appellant was not there when the initial discussions
took place in Mitchell’s Plain. 1st appellant was there from the moment he was fetched on
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the day of the planned robbery. 4 th appellant told Dini that 1 st appellant had a stolen
vehicle which he hid, before they fetched 1 st appellant. At the police station, the police
confirmed that the Etude was a stolen vehicle. Dini was lined up as a suspect in an
identification parade that was held in connection with robberies that happened in Nyanga
and Mfuleni. He was pointed out twice. Dini heard allegations that the firearm found on
him was linked to a shooting scene in Mfuleni. The ID parade was before Barker had
approached him to become a State witness. The ID parade was done after Dini agreed
to be a state witness but before he gave a statement. The appellants were some of those
who were on the parade as suspects. Dini, Putase, 1
st appellant, 2nd appellant and 4 th
appellant were pointed out. Dini was already denied bail at the time. Dini only came to
know the names of the appellants after their arrest and as they also attended court
together as co-accused.
[20] Mwanda Patrick Mbewu (Mbewu) was Sergeant in the SAPS attached to the vehicle
identification section of the Cape Town Central Police station and was working for the
Flying Squad at the time of the incident. He was doing crime prevention with Williams and
Efta in Ceres when they were told about vehicles allegedly involved in going to do an
armed robbery. He was told to go to Ceres and was not told the reason. What he knew
was that Samuels and Botha, other members of the Flying Squad also came to Ceres.
He did not know whether they drove together or not but they were not in the vehicle that
he drove that day. The vehicle was a Mazda Etude, which they spotted as it met the
description given. They were following the Etude when a passenger alighted from its
back. Williams got out and followed the passenger that lighted whilst Mbewu tried
stopping the Etude using the siren and the blue lights. The Etude turned into another
street and stopped. There were two people in the Etude, both in the front seats, the one
driving. Mbewu and Efta drew their firearms , told the occupants of the Etude that they
were police officers, and instructed the occupants to get out. Mbewu went to the
passenger. The passenger got out and stood next to the vehicle. The passenger door
was open. There were no other people around at the time. Mbewu instructed the
passenger to lift up his hands in the air and stand next to the vehicle and the passenger
complied. Mbewu searched the passenger and found a firearm on the passenger’s right
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pocket of the blue jeans. Mbewu personally removed the firearm from the passenger’s
pocket and looked at it. It was a Black 9mm firearm. Mbewu saw that the numbers on the
firearm were grinded off. Mbewu asked the passenger what was he doing with that firearm
and the passenger said the driver of the Etude gave him the firearm. The driver heard this
and responded, saying: “I did not give you the firearm”. Mbewu arrested the passenger
and ordered him to lie on the ground. The passenger was not cuffed at the ti me and
Mbewu did not put a firearm next to the passenger. Mbewu put the firearm in his own
pocket. Mbewu searched the vehicle. Mbewu denied that he found the firearm in the
vehicle and not on the passenger. Mbewu’s communication with the passenger and the
response of the driver was in isiXhosa. The firearm was later put into a forensic bag. The
forearm had two rounds of ammunition. The forensic bag was marked, sealed and handed
in the SAP13 register in Ceres. The passenger gave his name to Mbewu as Phelo
Gxasheka, 1
st appellant. Other police officers arrived on that scene. They all left to go to
the police station in Ceres where Mbewu made wrote his statement. After the cross -
examination of Mbewu, by Mr Mpiti on behalf of 3 rd appellant, Mr Mpiti withdrew as
attorney of record.
[21] Danie Botha (Botha) was a Warrant Officer in the SAPS and was also a member of
the Flying Squad based in Maitland. He was part of about 8 members of the Unit that
went to Ceres based on information of an alleged robbery about to take place. He was
with Warrant Officer Hans in a marked police vehicle. Hans was the driver. The
information included a Mazda Etude and a white Isuzu bakkie that were involved, which
they were on the lookout for. He spotted the vehicles coming from the township of Nduli
towards the town of Ceres. The vehicles were following each other. The third vehicle of
interest which was involved in the convoy was a Jetta. Botha saw two men at the back of
the bakkie, both wearing work-suit overalls, one of which he could read the letters RS S.
That convoy turned from the main road into a side street. Botha saw when his colleagues,
Mbewu and Efta, pulled off the Etude. Hans stopped quickly to ask if Mbewu and Efta
needed assistance, and when the two indicated the situation was under control, B otha
and Hans went to look for the bakkie. Because of the stop they briefly lost the bakkie.
They were driving on the main road out of Ceres towards Nduli when they spotted two
15
males walking on the left side of the road towards Nduli . Botha saw the letters RSS on
one of the overalls and realized that the two matched the ones he had seen earlier at the
back of the bakkie. There was another police vehicle as well at that time, four police
officers in total. The police stopped near the t wo men. Hans and Botha approached the
man with the overall with RSS letters whilst the police officers in the other vehicle attended
to the other man. Botha saw the man he was approaching when he drew a firearm from
the front of his pants around his waist and threw it on the ground, not even a metre away.
Hans ordered him to lie down and Botha cuffed him. Hans picked up the firearm. It was a
9mm short pistol. The serial number was filed off. Hans arrested that man. The man was
3
rd appellant. The other two police officers on the scene were Michaels and Samuels.
They were not far and Botha saw that they arrested another suspect. Botha saw the
firearm which the officers said was found on the person of the suspect they arrested. The
police took the two suspects to Ceres SAPS where the paper work was done. Botha saw
when the two firearms were made safe, bullets removed, sealed and put in forensic bags
in front of the suspects. There were 5 live rounds in the firearm which Hans found. Botha
wrote the serial numbers of the bags in his statement.
[22] At the close of the State case the appellants applied for a discharge in terms of
section 174 of the CPA, which was dismissed. Putase testified in his defence. 1
st appellant
also testified and closed his case without calling any witnesses. 1st appellant testified that
he was known as Blacks. He knew Putase as a photographer and had known him for
about 5 months before his arrest. He did not know Dini and first saw Dini at the police
station on the day of the incident. On that morning 1st appellant had met Putase in Harare,
Khayelitsha. Putase told 1 st appellant that he was on his way to Ceres to buy juice. 1 st
appellant did not know Ceres and wanted to know it, and got into Putase’s vehicle, the
Etude, to go with him. Putase drove different vehicles and had taxis at the rank, and 1 st
appellant did not ask Putase anything about the vehicle and did not know that it was a
stolen vehicle. He had never met any person at Site C, Promenade Mall, Mitchells’ Plain
or Nduli to conspire to plan a robbery. 1
st appellant did not know the other co-accused. It
was only 1st appellant and Putase in the vehicle when they drove to Ceres. 1 st appellant
had never been to Ceres before and had never been to Nduli. He heard about Nduli for
16
the first time from the police after his arrest. 1st appellant sat at the front passenger’s seat
whilst Putase was driving. They got into Ceres, turned into a road and then there were
police vehicles. The police stopped them and they were pointed with firearms by the police
whilst he was still seated in the vehicle. The police man who testified came and took 1
st
appellant out of the vehicle and made 1 st appellant lie on the ground next to the Etude.
1st appellant was never directed to put his hands in the air and he did not do so. 1 st
appellant disputed that he was searched by Mbewu as he was searched by a police
official who was not an African person. When he was searched whilst on the ground,
nothing was found on 1
st appellant.
[23] 1
st appellant only saw the firearm when it was shown to him as he lay on the ground.
It was not found on him. He did not know if the firearm was found in the Etude. Only a
phone and Zambuck were found on his person. The police confiscated his phone. He did
not remember telling the police that the firearm was given to him by the driver of the
Etude. 1
st appellant was arrested and taken to the police station. 1st appellant and Putase
were taken to the police station in different vehicles. At the police s tation they were
detained in the same cell. After some time other co-accused were brought into the same
cell. 1st appellant denied being part of a conspiracy to commit robbery, or being part of a
convoy from Nduli to C eres. He disputed that 2 nd appellant was in the Etude before 2 nd
appellant alighted immediately prior to the police stopping the Etude. 1 st appellant knew
that Putase was going to meet with 2nd appellant in town in Ceres. He however admitted
stopping at a garage because he wanted airtime, and that 4th appellant was there at the
garage although he could not say if 4th appellant was in a Jetta as he did not see what 4th
appellant was driving. He saw when 4th appellant spoke to Putase at the garage. He knew
4th appellant before that day.
[24] 2
nd appellant testified that he lived in Nduli and worked in Phillipi. He was in Ceres
on the day of his arrest when Putase called him. Putase had previously called 2 nd
appellant and informed 2 nd appellant that he got 2 nd appellant’s cell numbers from an
acquaintance who was a taxi driver and that the taxi driver said 2nd appellant could assist
with getting fruit juice in Ceres. Putase had explained to 2nd appellant that he ran a shop
17
and wanted fruit juice. 2 nd appellant had a cousin who worked where juice is made. His
cousin would get some juice and would look for buyers and 2 nd appellant would assist
them in getting buyers including from Cape Town. The first call was about three days
before the arrest. 2nd never met Putase before that day of arrest. The day before he was
arrested Putase called 2nd appellant to ascertain whether there was juice available, which
2nd appellant confirmed. On the day of the arrest Putase told 2 nd appellant that he was
coming to Ceres for that purpose and they agreed to meet in Nduli. 2 nd appellant waited
for Putase near a clinic in the open space at the entrance to Nduli. Putase took long and
2
nd appellant called him. 2 nd appellant was asked to describe what he was wearing and
he gave the description. Not long thereafter two police vehicles arrived, the police
alighted, pointed their big guns at him and ordered 2nd appellant to lie down. He was afraid
and shocked, and went down. He was handcuffed and taken to the police station. He only
spoke to a female officer at the police station and not on the scene of arrest. He was
handcuffed by a male officer. 2
nd appellant saw his co -accused for the first time at the
police station. He disputed being arrested in Ceres. He knew nothing about an Etude,
was never inside nor alighted from it. The police never told him why he was being arrested
in Nduli. It was only at the police station where he was told that he was arrested because
Dini was found in possession of a firearm which Dini alleged was given by 2
nd appellant.
2nd appellant did not know Dini and saw him for the first time at the police station after the
arrest. 2nd appellant did not know his co-accused.
[25] 3
rd and 4th appellant elected to remain silent and did not call any witnesses. In S v
Nkohle 1990 (1) SACR 95 (A) at 100 it was said:
“It need hardly be stressed that where a trial court’s findings on credibility are in issue on appeal,
as in this matter, then, unless there has been a misdirection on fact, the presumption is that the
conclusion is correct, the appellate court will only reverse it if convinced that it is wrong.”
[26] The police, through Pangu, received information that there was a white Isuzu bakkie,
a Mazda Etude and a Jetta that will drive into Ceres on 4 September 2014. The occupants
were armed and intended to rob a business in Ceres in the central business district. The
police did not want to wait for the robbery, as the situation may be uncontrollable. The
18
police considered that once a robbery was in progr ess they would not be able to control
the situation. They took a decision to intercept the planned robbery, and to arrest the
perpetrators and take the firearms. The police units kept watch and lookout on 4
September 2014 for a white Isuzu bakkie, a Jetta and a Mazda Etude. Pangu and Botha
are some of the members of the police who testified took positions and waited for the
vehicles whose description they were given. Pangu saw the vehicles enter Ceres and
driving to Nduli. He also saw when the Jetta returned alone into Ceres. He saw the
occupants observe a business and saw the vehicle return to Nduli. He and Botha saw the
vehicles approach from Nduli towards Ceres. The police had a good look at the vehicles
as they drove in. Botha saw the two men at the back of the bakkie wearing blue overall
tops, the one overall top was written RSS. When the suspected vehicles entered town in
a convoy, some of the members of the police drove in behind the suspected vehicles and
followed. In the convoy of the suspected vehicles the bakkie was in front, followed by the
Etude and the Jetta. There were a couple of vehicles between three marked police
vehicles that joined, and the suspected vehicles.
[27] Williams arrested 2
nd appellant after he alighted from the Etude. Efta arrested Putase
who was the driver of the Etude, which was stolen from Corney the night before the foiled
robbery. Mbewu arrested 1 st appellant who was a passenger in the Etude. 1 st appellant
had a firearm on his person when Mbewu searched him. Botha arrested 3rd appellant after
3rd appellant threw a firearm down when Botha approached him. Michaels arrested Dini
who had a firearm in his possession as Dini and 3rd appellant attempted to walk out of
Ceres to Nduli. According to Dini, he and 3rd appellant decided to walk past and not enter
the business after they had witnessed 4 th appellant, who was driving the Jetta, being
arrested just before they were to enter the business premises where they were going to
commit an armed robbery. These are the self-standing facts which should also be
considered, including in the evaluation of the evidence of Dini, the 204 witness. These
self-standing facts provide both corroborative and sufficient evidence in material respects,
by police, to the evidence of Dini . The evidence placed the appellants in circumstances
which support the heart of a conspiracy to commit robbery with aggravating
circumstances. These facts add to the probative value of the evidence of Dini, and taken
19
together, against the background of no answer from 3 rd and 4th appellant and that the
evidence of the 1 st and 2nd appellant is beyond reasonable doubt false, sufficed for the
State to discharge the onus to prove its case beyond reasonable doubt.
[28] Dini set out how each and every one of the appellants got involved and at which
stage of the process. Dini and Putase had previously committed armed robberies
together. Putase called Dini to come to Site C and when Dini arrived, Putase was with 3rd
appellant. All of them went to Mitchell’s Plain where they met 2nd appellant who informed
them about two places to rob in Ceres. Dini and 3rd appellant exchanged numbers on that
day. A few days later 3rd appellant enquired from Dini if the job was still on. Dini enquired
from Putase who confirmed. Putase also informed Dini that 4 th appellant would also join
in. On the day of the incident Putase and 4th appellant fetched Dini. Dini was told that 4th
appellant had a fast vehicle which was to be used as a get - away car. It was the Jetta.
They met 2nd appellant who was with the driver of the Isuzu bakkie. They all went to 4 th
appellant’s home. 4th appellant took out a Z88 pistol which Dini knew, having seen it with
Putase. 3rd appellant had a small firearm and Put ase had a 7.65. They picked up 1 st
appellant and they drove to 2nd appellant’s home in Nduli. This is where the robbery was
discussed. 4th appellant was to drive the get- away vehicle. Dini and 3rd appellant were to
drive at the back of the bakkie and were the ones to actually carry out the robbery in the
business. Section 204 is provided by court criminal procedure to facilitate the pursuit of
the truth. It did not appear to me that the use of Dini by the State was for purposes
extraneous to the pursuit of the truth. The trial court approached the evidence of Dini with
the requisite caution as an accomplice and a single witness in some respects. I am unable
to conclude that the magistrate was wrong in convicting the appellants.
ON SENTENCE
[29] 1
st appellant had no previous convictions. 2nd appellant had a previous conviction of
housebreaking with intent to steal and theft in 2002 and he was unconditionally
discharged and warned to appear before a magistrate when called upon to do so. He also
had a previous conviction of theft in 2006and was sentenced to 18 months imprisonment
20
wholly suspended for 5 years on condition he was not convicted of theft or attempted theft
committed during period of suspension. He was also sentenced to 18 months correctional
supervision with 16 hours of community service for every month of the sentence and was
declared unfit to possess a firearm. 3
rd appellant had one previous conviction of robbery
and was sentenced to 10 years imprisonment in 2005. 4th appellant had no previous
convictions. 1st appellant was 31 years old and unmarried but had two minor child aged
12 and 9. The children resided with his mother the whereabouts of the mother of the
children was unknown. He s uffered headaches and high blood pressure but was not on
medication. He left school in grade 11. He completed an IT diploma in 2010. He worked
at Two Oceans Aquarium in the Waterfront since 2008. He was in administration doing
records of clients that booked excursions and earned R750 per week. His mother was
sickly and old and was the only breadwinner with also a twin sister to support. He had
been in custody since his arrest. He worked as a shopkeeper in Pollsmoor prison and
also cleans the section. He did not get paid but got tobacco. He did not use alcohol or
drugs. His uncle passed away in 2019. His grandmother was at the time in hospital with
Corona. The appellant asked that his period in custody be taken into consideration and
that part of his sentence be suspended.
[30] 2
nd appellant was 31 years of age. He lived in Ceres and went up to grade 11. He
had one child of 8 years who lived with his mother. He worked for a relative and earned
R3000-00 per month. He supported his child and gave R1500 per month. His previous
conviction was more than 5 years. The appellant told the court that he was remorseful
and took responsibility for the crimes he committed. He was already 6 years and six
months in custody and was not the sole reason for the delay. He was on medication for
a chronic illness. 3
rd appellant was 46 years old and passed standard 6 at school. He was
married for 19 years. He had two girl children, 16 and 6 years old respectively. The
children lived with his wife who was struggling as she was unemployed. The wife received
grants for the children. The wife completed standard 8 at school. He was a businessman
who sold clothing door to door. And made R2500 per month on average. He was almost
7 years in prison awaiting trial. He had body pains especially his back, feet and hands as
prison was very cold. He sustained injuries in an accident years ago, and the cold
21
conditions in prison exacerbated his condition, moreso because he did not receive proper
medication in prison. The court was asked to consider taking all the convictions as one
for purposes of sentence or suspend some of the sentences or alternatively make them
run concurrently. Although it was different offences, it was one continuous action. The
robbery did not take place and nobody was injured. 4
th appellant was 41 years old and
not married but had two children aged 12 and 17, with different mothers. His daughter
was awaiting her matric results. He supported his daughter but had no contact with his
son who lived with the mother in the Eastern Cape. The son’s mother was an alcoholic.
The daughter’s mother had a chronic illness and could not work but receiv ed the R350
Covid relief fund. 4
th appellant passed matric in 1997. He enrolled for a diploma in
electrical engineering but only secured an N1 and N2 because of limited funds. He was
self-employed, farming with pigs and goats and a take-away business ran from home. He
made about R3000 per month. It was established that he had a chronic illness in 2015.
He struggled with constipation and needed a high fibre diet which the prison could not
provide. He had been in custody since his arrest. The robbery did not take place, nobody
was injured and he was a first offender.
[31] The idea to rob was not a spur of the moment. It was conceived between Putase and
2
nd appellant. The necessary tools were put together. A fast car, the Jetta, was sought
with an equally capable driver, 4th appellant. The Etude was stolen, which was the vehicle
that was used by those who kept watch and whose role was to assist in getting away. A
stolen vehicle is easily disposable and makes it more difficult to trace suspects who used
it even if it is traced and found after a robbery. The requisite executioners were recruited,
who were daring in such circumstances and according to Dini, heartless with no pity to
rob and if need be shoot to kill , to wit, 3
rd appellant and Dini himself. Another equally
useful person was brought in, 1 st appellant, who was also known in their circles of
committing robberies . A Z88 firearm which Dini recognized as the one Putase used
previously in robberies with Dini, was made available by 4th appellant, 3rd appellant had a
firearm and Putase also contributed another firearm, a 7.65. 2 nd appellant lived in Ceres
and knew the places very well. According to Dini 2 nd appellant had reported that he had
previously robbed the targeted business and knew that there was large amounts of cash
22
at the premises. No one was injured because of the good intelligence and operational
output of the SAPS who intercepted and foiled the planned robbery. Slow as the tide may
turn, the turbulent tide of serious and violent crime is turning against criminals, as
members of the public gain the confidence in some of the members of the police and
report criminal and planned criminal acts, resulting in convictions and sentencing of those
who thought South Africa’s freedom includes freedom to commit serious and violent
crime.
[32] The appellants individually and collectively dragged out the court process. They were
arrested on 4 September 2014 and pleaded guilty on 30 August 2016. Much of the delays
between 2016 and February 2021, the period of six and a half years, were self -inflicted
by the appellants themselves. An accused person is well within their right to plead not
guilty and challenge the State case. However they cannot be heard to complain when the
consequence of their choice may be that they cannot be credited for prospects of
rehabilitation when sentence is considered, a credit which may readily be due to someone
who pleaded guilty and showed remorse once caught. It is worth noting that Chapter V of
the Correctional Services Act, 1998 (Act No. 111 of 1998) (the CSA) did not have
provisions that speak to the promotion of the social responsibility and human
development of detainees not yet sentenced, which is one of the specific programmes in
order to meet the purpose of our correctional system, which is to contribute t o the
maintenance and protecting a just, peaceful and safe society. Section 36 in Chapter IV of
the CSA reminds one that the implementation of a sentence of imprisonment has the
objective of enabling the sentenced prisoner to lead a socially responsible and crime-free
life in the future. Whilst there are general principles of being in prison, there are also those
that are specific to sentenced prisoners and this includes participation in the assessment
process and the design and implementation of any developmental plan or programme
aimed at achieving the objective as indicated in section 36 [section 37(1)(a) of the CSA]
and for the prisoner to perform any labour which is related to any development
programme or which generally is designed to foster habits of industry, unless the medical
officer or psychologist certifies in writing that he or she is physically or mentally unfit to
perform such labour [section 37(1)(b) of the CSA]. These comments are necessary to
23
disabuse any mind of the perception that being in custody pre- sentence and after
sentence is the same. A sentenced prisoner is subject to assessment [section 38(1)] and
in the case of a sentence of 24 months or more, the manner in which the sentence should
be served must be planned in the light of this assessment and any comments by the
sentencing court [section 38(2)] . In respect of serious offences like the present, where
appellants conspired to commit robbery with aggravating circumstances and had even
conspired to kill if resisted, a sentencing court has reason to hold that such person require
the maximum benefit of a full assessment, sentence plan from a full range of programmes
and activities, subject to the review of such plans and the progress made and if necessary
to amend the plan as envisaged in section 42. In the exercise of its judicial discretion on
an appropriate sentence, against the obvious need of the appellants for correction, the
sentencing court cannot be faulted for the approach to the period in custody where the
appellants were not yet sentenced, as part of its overall consideration of rehabilitation as
a sentencing objective. What stood out was that the appellant deserved long terms of
imprisonment. The sentences of the appellants were individualized according to their
previous convictions, personal circumstances, their role in the commission of the crimes
and the seriousness of the offences.
[33] For these reasons I find that the sentences were appropriate and I would make the
following order:
The appeal against both conviction and sentence in respect of all four appellants is
dismissed.
_____________________________
DM THULARE
JUDGE OF THE HIGH COURT
I agree.
_____________________________
L NUKU
24
JUDGE OF THE HIGH COURT