S v Gumbi and Others (CC24/2023) [2023] ZAKZPHC 64 (13 June 2023)

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[2023] ZAKZPHC 64
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S v Gumbi and Others (CC24/2023) [2023] ZAKZPHC 64 (13 June 2023)

IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, NORTH EASTERN CIRCUIT
MTUBATUBA
Case No: CC24/2023
In the matter between:
THE STATE
and
ZAKHELE VUSI GUMBI

FIRST ACCUSED
SIBUSISO VELENKOSINI
MKHWANAZI

SECOND ACCUSED
PHILANI CARLOS
MZIMELA

THIRD ACCUSED
SIYABONGA MICHAEL
SANGWENI

FOURTH ACCUSED
JUDGMENT
MOSSOP J:
[1]
This is an ex tempore judgment.
[2]
Each of the four accused face the same 18
charges. Counts 1 to 7 encompass charges of robbery with aggravating
circumstances, count
8 is a charge of theft, counts 9 to 14 are
counts of attempted murder, count 15 is a charge of murder, counts 16
and 17 involve
the unlawful possession of a prohibited firearm and a
firearm respectively and count 18 alleges a count of unlawfully
possessing
ammunition.
[3]
All of these charges are founded on events that
occurred on 2 February 2022 at a store known as ‘Beauty Zone’
(the store),
located in the Plaza Mall situated in the Zululand town
of Mtubatuba. According to the summary of substantial facts attached
to
the indictment, the State alleges that on that date, the four
accused were part of a group, acting with common purpose, who swept

into the store late in the afternoon at around closing time with the
fixed purpose of robbing it and anyone that they found within
it. The
South African SAPS Services (the SAPS) having been notified of the
robbery then happening in the store, went there in force
and trapped
the gang in the store. There were then firefights and during the
course thereof, according to the summary, accused
one and two
sustained gunshot wounds to their legs. I point out at this stage
that this was incorrect: it was common cause at the
trial that
accuseds two and four were the persons who sustained gunshot wounds
to their thighs. One of the gang members lost his
life. The State
further alleges in the summary of substantial facts that when the
SAPS effected the arrest of the four accused,
they found them hiding
in the ceiling inside the store.
[4]
At trial, accused one and two were represented by Mr. Ntuli and
accused
three and four were represented by Mr. Daniso. Both counsel
are thanked for the assistance that they have provided to their
clients
and to the court during the duration of this trial.
[5]
When the indictment was put to the accused each of them pleaded not
guilty
to all of the counts. Each of the accused delivered a written
plea explanation in terms of section 115 of the Criminal Procedure

Act 51 of 1977 (the Act):
(a)
Accused number one explained that he was in the store
on the day in
question because he had gone there to purchase a face wash. He
explained that two African males came into the store
and told the
occupants to lie down. The two African males were wearing balaclavas.
He complied with these instructions and lay
on the floor but was
thereafter arrested by the members of the SAPS who attended the
scene;
(b)
Accused number two also admitted that he was in the store
and that
he, too, had gone there to purchase cosmetics. He also described how
two African males entered the store and told the
occupants to lie
down. The robbers noticed that he was in possession of a licensed
firearm and shot him in his right thigh before
robbing him
of
his firearm. He also described the robbers as wearing balaclavas;
(c)
Accused three pleaded that he had gone to the town of
Mtubatuba in
order to collect some traditional medicine from a traditional healer
who was assisting him. The traditional healer
asked him to go to the
store to buy some cleansing water which he wished to mix with certain
herbs that he was to give to accused
three. Inside the store, accused
three heard gunshots and saw that customers inside the store ran to
the back room, as did he.
Whilst hiding in the back room he was found
by the SAPS members and was arrested; and
(d)
Accused four stated that he had gone to the Plaza Mall,
where he was
to meet the mother of his minor child to give her some money for the
maintenance of the child. He met up with her
and gave her money and
she went into the store to purchase something for the child while he
waited outside. After a considerable
time period waiting he called
her on her cellular telephone but she did not answer it. He then
entered the store himself and looked
for her. As he was proceeding to
the exit of the store, he heard gunshots and ran back inside the
store. He then noticed that he
had been shot on his leg and went to
hide in one of the storerooms. He, too, was arrested when the SAPS
arrived.
[6]
The court inquired of the accused whether they were aware of the
provisions
of the
Criminal Law Amendment Act 105 of 1997
which deals
with minimum sentences and whether they understood the concept of
competent verdicts. When it appeared that this was
not known to the
accused, the court gave the necessary explanation, which all of the
accused then said that they understood.
[7]
Having pleaded, each of the accused also made certain admissions in
terms
of section 220 of the Act. They each admitted the accuracy of
the post mortem report prepared in respect of the deceased person
and
admitted that the deceased’s body suffered no further injuries
from the time of his death to the time of his post mortem

examination. They also admitted a ballistic report prepared by an
expert in the employ of the SAPS and admitted the chain of evidence

relating to the conveyance of firearms from the store to the forensic
laboratory for analysis. Each of the accused also admitted
the
findings recorded on a J 88 form that was completed in respect of the
victim on one of the counts of attempted murder. Finally,
each of the
accused admitted that the events inside the store had been recorded
by video cameras onto a video tape or videos and
none of them had any
objection to the videotapes being received into evidence.
[8]
Accused three and four included as part of their plea a section that
dealt
with admissions that they were prepared to make. In my view, a
plea is not a place for such admissions. The admissions contained
in
the plea, in any event, appeared to be incorrect and a line was
consequently drawn through them by the court. The section 220

admissions referred to in the preceding paragraph were thus not those
admissions attached to the pleas of accused three and four,
but were
admissions recorded in separate documents prepared in respect of each
of those accused respectively and handed in as exhibits.
[9]
The post mortem referred to by the accused in their respective
section
220 admissions related to the late Senzo Siphamandla Xulu
(the deceased). The post mortem report prepared by the State
pathologist
found that the deceased’s cause of death was
gunshot wounds to the chest with massive blood loss.
[10]
The first witness called by the State was Ms Nolwandle Immaculate
Manqele, a specialist
photographer, draftswoman and fingerprint
expert employed by the Local Criminal Records Centre in Mtubatuba.
She confirmed that
she had attended the Plaza Mall after the SAPS had
effected the arrest of the four accused. She took photographs of the
scene and
compiled an album of those photographs which was then
received by the court. She also located certain cartridges and spent
bullet
heads at the scene of the crime, marked them in situ,
photographed them, later retrieved them and packaged them and
dispatched
them to the ballistics laboratory for analysis. Finally,
she also took certain biological samples in the form of swabs taken
from
the floor and the wall of the store of what she believed was
human sweat and sent these swabs through to the forensic laboratory

for analysis. Her evidence was uncontroversial and was unchallenged
by the defence.
[11]
The second state witness was Captain Steven Mandla Nkabinde (Capt
Nkabinde), who has been
a member of the SAPS for 29 years, 22 years
of which have been spent as a detective. He was on duty on 22
February 2022 when he
received reports of a robbery in progress at
the Plaza Mall in Mtubatuba. He estimated the time of the report to
be between 17h00
and 17h30 and it took him but minutes to proceed
from the SAPS station in Mtubatuba to the Plaza Mall. He proceeded
there with
certain colleagues and upon arrival, they were directed to
the store.
[12]
When he arrived at the store, its roller door was rolled down. The
roller door was made
of perforated metal and the perforations
permitted vision into the store that it protected. Capt Nkabinde
rapped on the roller
door and announced that the SAPS were now in
attendance. At that stage it was considered a possibility that the
employees and customers
of the store may have been held as hostages
by the robbers. After some time, a tall male person came to the
roller door and attempted
to lift it up from the closed position. He
managed to get it half way up. As he was lifting it, he continuously
looked over his
shoulder and Capt Nkabinde then saw four males
walking quickly towards the roller door from inside the store.
[13]
Whilst Capt Nkabinde was in civilian attire, all of the other
SAPS members who were
in attendance were in uniform. There could,
therefore, be no confusion as to who was standing outside the store.
Capt Nkabinde
again announced the presence of the SAPS and ordered
everyone inside the store to lie down and put their hands in the air.
He then
noticed that two of the four men he had observed walking
towards the roller door were armed: one had a revolver and one had a
pistol
similar to those issued by the SAPS to its members. The male
who had attempted to lift the roller door then ran to the back of the

store. Instead of the four men obeying Capt Nkabinde’s order to
lie down, the two men with firearms commenced firing at the
SAPS
members standing outside the store beyond the roller door. The SAPS
retreated, took cover and opened fire on the people firing
at them.
During the course of the exchange of gunfire, the roller door rolled
down from the half open position to the closed position
and the four
men in the store then retreated deeper into the store.
[14]
Things went quiet for about 10 minutes. Suddenly, further gunfire was
heard deeper in the
store. Capt Nkabinde later ascertained that this
was an attempt by the robbers to shoot off the padlock of a rear door
that would
have allowed them to exit the store. He estimated that
about five shots were fired.
[15]
The same man who had previously attempted to open the roller door
then returned to the
roller door with some women. Behind the women
were approximately 5 or 6 men walking in the same direction as they
were, towards
the roller door. Capt Nkabinde ordered all the men to
remain in the store and only the women were permitted to leave it.
Whilst
the women were not crying, it was clear to Capt Nkabinde that
they were terrified. The man who had attempted to open the roller

door kept walking with them and the woman then shouted to the SAPS
members that he was the security guard employed in the store.
He was
consequently permitted to leave the store.
[16]
Notwithstanding his instruction that all the men were to remain
inside the store, the five
or six men were reluctant to obey that
order. Another man was then identified by the women who had left the
store as a security
guard employed in the store and he was also
allowed to leave.
[17]
Left inside the store were thus approximately five men. Accused two
was observed to be
in possession of a revolver. Capt Nkabinde shouted
to the men that all firearms were to be put down. However, accused
four, who
was in possession of a pistol, again fired at the SAPS
members and in turn the SAPS members fired a volley of shots back at
them.
The men, again, retreated deeper into the store.
[18]
Capt Nkabinde noted that the men were initially wearing hats or caps
but later, when arrested,
were bareheaded. The photograph album has
several photographs of hats and caps found discarded on the floor of
the store.
[19]
Capt Nkabinde could not categorically state that accused two had
fired his revolver that
he was seen to possess. He indicated that
because a revolver does not eject its spent cartridges, it was
difficult for him to be
certain that it was being fired at the SAPS
members. However, the pistol utilized by accused four did eject spent
cartridges and
the ejectment of the cartridge was a further
indication to Capt Nkabinde that accused four was firing the firearm
at the SAPS members.
[20]
At this stage, even more security officials arrived at the scene:
these were more members
of the SAPS, supplemented by armed soldiers
and further reinforced by members of the SAPS Technical Response Team
(the TRT) under
the leadership of Sgt Mthembu. The TRT was briefed on
what was going on and it was confirmed that the robbers were still
within
the store. Sgt Msweli and Sgt Mthembu, both trained members of
the TRT, then volunteered to go into the store to perform a ‘sweep

up’ operation to ascertain whether the robbers, who by now had
stopped firing, were still in the store or whether they had
made good
their escape. They accordingly entered the store, performed the sweep
up operation and then returned to the entrance
door, where all the
other SAPS members were standing, and reported that they had found no
one inside the store. However, they had
seen a blood trail on one of
the walls and it looked to them as though the robbers had taken
flight by going upwards into the ceiling
of the store.
[21]
More members of the SAPS went into the store with the two members of
the TRT, a ladder
was produced and Sgt’s Mthembu and Msweli
proceeded to enter into the ceiling of the store in hunt of the
robbers. Capt Nkabinde
then heard shouting and instructions being
given to people in the ceiling and he could hear the sound of
footsteps on the ceiling
boards. Dramatically, a ceiling board broke
and a person dropped through the hole thus created and slammed onto
the floor of the
store. The fallen person was instructed to remain
lying on the floor. Further instructions were then heard being given
and eventually
three more males came out of the ceiling. As they
exited the ceiling, the ceiling began further disintegrating and
falling apart.
This is recorded in photographs contained within the
photograph album. The four men who were thus taken out of the ceiling
were
the four accused in this matter.
[22]
Capt Nkabinde noticed that accused number two and accused number four
had been shot. Both
were shot in their right thigh and were bleeding
and were eventually taken to hospital. The SAPS discovered eight
cellular telephones
in the possession of the four accused, some of
which belonged to the customers and employees who had been inside the
store at the
time of the robbery. An amount of R760, comprised solely
of R20 notes, was discovered in the underwear of accused number two,
close
to his testicles. A sum of R1 946 was found in a bag in the
back of the store.
[23]
Capt Nkabinde appears to have questioned most of the accused in the
course of his duties.
Accused one, who was not armed when arrested,
stressed this fact when he was interviewed. He did not dispute that
he had gone to
the store to rob it. When he was asked why he was
found hiding in the ceiling, he explained that he was trying to avoid
being arrested
by the SAPS. Capt Nkabinde indicated that he had not
been able initially to specifically identify accused one as being
part of
the gang of robbers because he had been focusing almost
exclusively on those who were armed and who were discharging their
firearms
in his direction. Accused three was, according to Capt
Nkabinde, strikingly and memorably attired: he wore a maroon or brown
jacket,
and khaki coloured trousers. Accused three complained to Capt
Nkabinde that he had been ‘played’. He explained that
he
had been told that he could make easy money by robbing the store. He
informed Capt Nkabinde that had there had initially been
six members
of the gang but he was unable to account for the other two members.
The deceased person was unknown to accused number
three, who only
knew him by his name: Mqrbhula.
[24]
Finally, Capt Nkabinde expressed the view that the deceased person
had been shot by the
SAPS whilst in the ceiling of the store. He
conceded that he did not witness this, nor did he see the deceased
fall from the ceiling
to the floor, but he was found on the floor,
alive and groaning, with a pistol next to him. This was recorded in a
photograph,
albeit after the deceased person had passed on.
[25]
Under cross-examination by Mr Ntuli for accused one and two, accused
two’s version
that he had never used the revolver that he had
possessed was put to Capt Nkabinde. His version was that the robbers
had seen that
he was in possession of a revolver and had shot him in
the leg and taken it from him at an early stage in the proceedings.
Capt
Nkabinde rejected that and said that he had seen accused two
holding the revolver, he had pointed at the SAPS members and that he

had never seen anyone else with it. He explained that when he
questioned accused two, he had been told by him that the only time

that the revolver had been fired was when accused two was attempting
to shoot the padlock off the alternative exit door. Capt Nkabinde
was
prepared to accept this as being correct because the cartridges
recovered at the scene from this firearm were in the vicinity
of the
padlocked door. Arising out of this, Capt Nkabinde was not prepared
to say that accused two had fired the weapon at the
members of the
SAPS. It was disputed that accused two was in possession of the
multiple R20 notes but, again, Capt Nkabinde was
adamant that accused
two did possess that money. He explained that he was not the first
SAPS official to search accused two but
he had done so after seeing
the notes protruding from his underpants as his trousers were torn.
He had then discovered the R760.
[26]
It was put to Capt Nkabinde by Mr Ntuli that accused one had not
climbed into the ceiling.
Capt Nkabinde’s response was that the
two members of the TRT had searched the floor area of the store but
had found no one
on it. If accused one had not got into the ceiling,
then he would have been discovered by the TRT members or he should
have made
his presence known to the TRT members. The fact that he had
not been found and had not come forward meant that he had to have
been
in the ceiling.
[27]
In response to the proposition that accused one had gone to the store
as a customer and
not as a robber, Capt Nkabinde answered that he
found this strange. He explained that the women who worked in the
store had stated
that there were only three women customers in the
store before the robbery occurred. Because it was late in the day,
the staff
were limiting who came into the store as it was to close
shortly. The women employees said they did not know the accused as
customers.
In any event, Capt Nkabinde pondered why a customer of the
store would climb into the ceiling which is where he claimed accused

one had been found. With regards to the proposition that there were
two robbers who each wore balaclavas, Capt Nkabinde said that
no
balaclavas had been recovered from the scene: caps and hats had been
recovered but not balaclavas. The discarded hats and caps
feature in
the photographic album but there are no photographs of discarded
balaclavas. Capt Nkabinde also explained that he had
watched the
video recording of the robbery and noted that none of the
participants in the robbery wore a balaclava.
[28]
With regards to accused two, it was put to Capt Nkabinde by Mr Ntuli
that he was, in fact,
wearing a gray T-shirt. Capt Nkabinde was
resolute in his evidence that accused two had worn a green top, but
was prepared to accept
that there may have been a gray T-shirt
underneath that top. Commenting on the version of accused two that he
had been dispossessed
of his revolver by the robbers, Capt Nkabinde
remarked that accused two had never opened a case of robbery against
those robbers
nor had he ever made complaint to the SAPS of himself
also being a victim in the same robbery. Mr. Ntuli denied that either
accused
one or accused two had been found in the ceiling, but Capt
Nkabinde was having none of it: he said that he could see from the
door
how the four men in the ceiling had been forced out of their
hiding place. It was then put to Capt Nkabinde that accused one was

never questioned at the SAPS station about his role in the robbery
but was, instead, interrogated about his neighbour and his
neighbour’s motor vehicle. Capt Nkabinde said that he did not
know what accused one was talking about as he, Capt Nkabinde,
did not
know where accused one lived, who his neighbour was, or what type of
motor vehicle his neighbour possessed.
[29]
Mr Daniso then cross-examined Capt Nkabinde on behalf of accused
three and four. Capt Nkabinde
was shown, and admitted, a statement
that he had made of the events in which he was involved. The purpose
of this was to demonstrate
that Capt Nkabinde did not identify who
was carrying a firearm in that statement. He admitted this and could
offer no explanation
as to why he had not identified who possessed
the firearms. But, he did say that three firearms had been recovered
on the day in
question. A firearm had been found next to the
deceased. Capt Nkabinde confirmed that he had not seen the deceased
with the four
accused. Mr Daniso put his clients’ respective
versions to Capt Nkabinde, who generally responded that this this was
all
news to him.
[30]
The third State witness was Sgt Sibusiso Saziso Mthembu, a member of
the TRT with 17 years’
service, of which 12 years had been
spent in the TRT. He testified that on 2 February 2022, he and Sgt
Msweli arrived at the store
10 minutes after receiving information
that a robbery was in progress in the store. He estimated that the
call had come through
at about 17h20. At the store, he found Capt
Nkabinde and other top brass of the local SAPS and he and Sgt Msweli
were briefed by
Capt Nkabinde on what had transpired. He proposed
that he and Sgt Msweli go into the store to perform a ‘sweeping
up’
operation. This was agreed to and it took about 15 minutes
for he and Sgt Msweli to prepare themselves to perform this dangerous

operation. They were told that, notionally, the only people who would
be in the store would be the robbers. They performed a thorough
sweep
through the store, which took about 15 minutes to perform. They found
no one on the floor of the store. They did, however,
notice blood on
the wall and believed that the robbers had gone upwards into the
ceiling.
[31]
They returned to the door of the store and informed the officers
there of what they had
found and what they proposed to do, namely, to
go into the ceiling to search for the robbers. This was agreed to and
Sgt Xulu and
Constable Sibiya were instructed to assist the TRT
members inside the store. A stepladder was found inside the store and
Warrant
Officer Armstrong provided a light source with his torch. Sgt
Msweli went up the ladder first and climbed into the ceiling and was

then followed by Sgt Mthembu. Warrant Officer Armstrong climbed up
the ladder so that the top half of his body went into the ceiling
and
he then used his torch to illuminate the void. Each member of the TRT
in the ceiling was looking in a different direction and
Sgt Msweli
quickly spotted four men lying on the ceiling boards on his side of
the ceiling. The members of the TRT had gained access
to the ceiling
not through a trapdoor but through a broken portion of the ceiling
which had obviously been broken open by those
climbing into the
ceiling. When he saw the four men lying down, Sgt Msweli shouted at
them and gave them instructions to get up,
put their hands on their
heads and then reverse towards him one by one so that they could be
taken out of the ceiling via the same
hole that they had broken open
to gain access to the ceiling. The men were compliant but as the
first person came towards Sgt Msweli,
the ceiling board broke and he
fell from the ceiling to the floor. One by one, the men came out of
the ceiling and were taken into
custody on the ground by Sgt Xulu and
Cst Sibiya.
[32]
According to Sgt Mthembu, a firearm was found on accused two. This
was a revolver with
one live round contained within it. Cst Sibiya
also found a pistol on one of the accused: the witness believed it to
have been
found on accused one who, it transpired, he knew as being a
young person living in the same area where he lived.
[33]
Mr Ntuli put the respective versions of accused one and accused two
to Sgt Mthembu. Sgt
Mthembu confirmed that the ladder had been in the
store and had not been fetched from elsewhere by Warrant Officer
Armstrong. He
also confirmed that no firearm had been recovered from
either accused three or accused four but he remained adamant that a
revolver
had been discovered in the possession of accused two.
[34]
Under cross-examination by Mr Daniso, Sgt Mthembu confirmed that he
and Sgt Msweli had
been given a description of what the robbers were
wearing prior to venturing into the store. He confirmed that, in all,
three firearms
had been located in the store: two were found in the
possession of the accused and the third was possessed by the
deceased. He
confirmed, further, that far from there only being four
men in the ceiling as he had initially testified, there were, in
fact,
five men in the ceiling and the gang was comprised, in total,
of some six members. The deceased and the four accused before the

court accounted for five members and they had looked for the sixth
member on the day of the robbery but had not been able to locate
or
apprehend him. Sgt Mthembu disputed that accused three and accused
four had not been in the ceiling. He also confirmed that
both accused
two and accused four had been injured.
[35]
The court then asked Sgt Mthembu some questions to try and account
for the number of men
found in the ceiling. He confirmed his evidence
that when he and Sgt Msweli had gone up into the ceiling, four males
were initially
located in the ceiling. The first male to leave the
ceiling, who had broken the ceiling board and fallen to the floor
below, was,
however, not the person who had ultimately died. The
impression had been created that this had been the deceased. Sgt
Mthembu said
that this was not the case and then explained that one
of the accused currently before court is the person who had fallen
from
the ceiling. After the four accused had been extracted from the
ceiling, it had come to the attention of the SAPS members that there

might be a fifth person hiding in the ceiling. The SAPS members then
heard the sound of someone moving in the ceiling and the person
in
the ceiling had fired a shot downwards at the SAPS members. The SAPS
members retaliated and fired back. It appears that the
person in the
ceiling was struck by a bullet from the SAPS members during this
gunfire because he was heard to immediately cry
out and moan. The
members of the SAPS had then gone into the ceiling and lowered the
person who had been shot down to the ground.
The person shot in the
ceiling had been located approximately five minutes after the four
accused had been taken from the ceiling.
[36]
Under cross-examination from Mr Ntuli, Sgt Mthembu confirmed that he
had not seen the deceased
person fall from the ceiling, as had
previously been described by Capt Nkabinde: on the contrary, the
deceased person had been
assisted from the ceiling to the ground. Sgt
Mthembu, in response to a question from Mr Daniso, said that in his
opinion the first
shot had been fired from the ceiling towards the
SAPS members beneath on the ground. Sgt Mthembu acknowledged that he
was not an
expert in this regard but that it seemed to him that the
first shot fired had come from above.
[37]
Sgt Mnelisiwe Ndoda Msweli was the next witness for the State. He,
like Sgt Mthembu, is
attached to the Empangeni TRT. He has 16 years’
service in the SAPS and has spent 10 years in the TRT. He attended
the scene
with Sgt Mthembu and estimates that they received the call
to attend the scene at either 16h55 or at 17h00 and that it took
approximately
15 minutes for them to get to the store. On arrival,
they were briefed about what to expect in the store and he and Sgt
Mthembu
then entered the store. They found no one on the floor of the
store. They did, however, notice a hole in the ceiling and
bloodstains
on the wall which led them to believe that the robbers
had gone up into the ceiling. They returned to the entrance door of
the
store and informed the officers waiting there of their findings
and their suspicions. They were given permission to go in to the

ceiling and whilst they were up in the ceiling they were to be
assisted by Sgt Xulu and Cst Sibiya, who would wait on the floor
of
the store and who would control any people found to be in the
ceiling. Sgt Msweli confirmed that Warrant Officer Armstrong had
also
assisted by holding a step ladder for them while they ascended and by
directing his torch into the darkness in the void of
the ceiling. Sgt
Msweli stated that he entered the ceiling first, followed by Sgt
Mthembu. Once in the ceiling, he went to the
left and Sgt Mthembu
went to the right.
[38]
He noticed four males lying on the ceiling boards on his side of the
ceiling. They were
all lying side by side. He shouted that he was
from the SAPS and instructed them to put their hands on their heads
and come down
one at a time, moving in reverse. This was done for
safety reasons. As the first person complied with his instruction,
the ceiling
board broke and the person found fell through the ceiling
to the floor below. The three remaining in the ceiling then obeyed
his
instruction and exited the ceiling. Once on the floor of the
store, they were instructed to lie down.
[39]
Sgts Msweli and Mthembu then provided backup to the officers on the
ground as they searched
the accused. Sgt Msweli stated that Sgt Xulu
recovered a firearm, namely a .38 revolver from accused two. Cst
Sibiya found a second
firearm, being a 9 mm pistol, on accused one.
The revolver had one live round of ammunition in it.
[40]
According to Sgt Msweli, he and Mthembu had initially been told that
there were six robbers
involved in the robbery. Four men had been
extracted from the ceiling meaning that two were still at large. It
was considered a
possibility that one of these two men was still in
the ceiling. The plan that was thus developed was to go back into the
ceiling
and to conduct a more thorough search. However, in attempting
to scale the step ladder for second time, Sgt Msweli fell and cut
his
right wrist and twisted his knee. He had to leave the store in order
to receive medical treatment from ambulance staff who
were now in
attendance. He played no further active part in the events.
[41]
Sgt Msweli said that he and Sgt Mthembu had been given the
descriptions of the clothing
of the robbers. Two of them were wearing
overall tops, one was in a black jacket and the other wore a brown
jacket. The persons
who had been taken from the ceiling were
apparently wearing the same clothing. He confirmed that two of the
accused were injured
when taken from the ceiling.
[42]
Mr Ntuli suggested to Sgt Msweli that his instructions were that
accused one was unarmed
as he was simply a customer in the store.
This was disputed. Sgt Msweli was apprised of accused two’s
version, namely that
he had been robbed of his revolver by the
robbers who had shot him in robbing him. Sgt Msweli rather pithily
replied that that
may have occurred but that the robbers must then
have given him the revolver back because accused two had it on him
when he was
searched after being extracted from the ceiling. That led
to a denial that either accused one or accused two had been in the
ceiling.
Sgt Msweli replied that he found no one on the floor when he
and Sgt Mthembu did the initial sweep through the store and that the

only persons arrested were those that were found in the ceiling. It
was then suggested that there was a possibility that they may
have
missed someone on the floor when he and Sgt Mthembu did their initial
search. The basis for this question was that it appeared
that when
the two TRT members had gone into the ceiling they had missed the
fifth accused. Sgt Msweli said that that was not possible.
The floor
was clear and he pointed out that the search in the ceiling was far
from over: it was the intention that they would go
back into the
ceiling to complete the search once they had dealt with the four
males who they found.
[43]
Mr Daniso, for accused three and four, got Sgt Msweli to confirm that
nothing was found
on accused three and accused four. He also asked
Sgt Msweli how many firearms in total had been recovered and received
the answer
that Sgt Msweli did not know. Mr Daniso also denied that
accused three and four formed part of the gang of robbers and
asserted
that they had been arrested in a back room and not in the
ceiling. Sgt Msweli was quite confident that he had found accused
three
and accused four in the ceiling. In response to the suggestion
that they had been found in the office, Sgt Msweli again pithily

remarked that there was no office in the ceiling.
[44]
In response to questions from the court, Sgt Msweli confirmed that he
and Sgt Mthembu were
in uniform and were quite easily identifiable as
members of the SAPS. If there had been victims of the robbery at
large on the
floor of the store when they did their initial sweep
through the store, there was every possibility that the victims would
have
made themselves known to them and sought their assistance. No
one did that.
[45]
The next witness was Lucky Jabulani Sibiya, a constable in the SAPS
stationed at KwaMsane.
He confirmed that he assisted Sgts Mthembu and
Msweli when they went into the ceiling of the store. Four people were
taken out
of the ceiling and he searched one of them. The person that
he searched was the first accused, Mr. Gumbi. He found a 9 mm firearm

in the front waistband of his trousers. He found nothing else. While
he searched only one person, he watched the searches that
were
occurring of the other men found in the ceiling. He saw Sgt Xulu
recover a .38 revolver. To the best of his ability he recalled
that
the person who possessed the revolver was Mr Mkhwanazi, accused two.
The 9 mm pistol that he had discovered had a magazine
attached to it
but the magazine was empty. Mr Ntuli denied on behalf of accused one
that Cst Sibiya had searched him but this was
refuted by Cst Sibiya.
It was also denied that accused one possessed a firearm and that,
too, was refuted by Cst Sibiya.
[46]
The next witness called by the State was Sgt Nkosinathi Sibusiso
Xulu, who is stationed
at SAPS Mtubatuba, and who has 16 years of
service. He assisted Sgts Mthembu and Msweli whilst they went up into
the ceiling on
the day in question. He and Cst Sibiya remained on the
floor of the store while the exercise in the ceiling above was being
carried
out. He confirmed that four men had been found in the ceiling
and had been forced down to the floor, where he was. He had searched

accused two and found the .38 revolver containing one live round in
the waistband of accused two’s trousers. He also asked
accused
two about the firearm and received the reply that it was a licensed
firearm but that accused two had lost the license.
This witness
confirmed that Cst Sibiya had found a 9 mm pistol on one of the other
accused persons. Accused two was injured at
the time of the search
and this witness then left the scene and took his accused, and the
firearm that he had discovered on accused
two, to the SAPS station.
He confirmed that he had seen another firearm next to the deceased
later when he had returned to the
scene. He was shown a photograph in
the photograph album that depicted the deceased lying on his back on
the floor but stated that
was not how he had initially lain: he was
lying initially on his side, with his head facing up and his legs
folded. Mr Daniso put
it to the witness that accused three and
accused four had never been removed from the ceiling but this was
roundly denied by the
witness.
[47]
Ms Philile Patience Nala is the manageress of the store known as
‘Beauty Zone’.
The store ordinarily opens at 08h00 and
closes at 17h30. At approximately 17h15 on 2 February 2022 there were
11 employees in the
store: seven female staff members, the witness
herself, two male security guards, one of whom performed duties
inside the store
and one who performed duties outside the store, and
a female promoter. As closing time approaches, it is the practice of
the store
to commence rolling down the roller door until it is about
half open so as to prevent more people coming into the store and to
allow only those persons still in the store to be served and then to
exit. On this day, the security guard had rolled down the roller
door
until it was a quarter open.
[48]
At that time there were four customers in the store, all of
whom were females. They
were no male customers in the store. A
customer had gone to the tellers, who are stationed in an elevated
section at the front
of the store. After the customer had paid, the
roller door was opened a little to allow her to exit the store. At
that moment,
five males entered the store, squeezing under the roller
door. They split up and some went to the till points and others went
on
to the floor of the store. Those who went to the till points told
the staff members to leave the till points and those on the floor
of
the store closed the roller door. The staff members were taken to the
storeroom at the rear of the store. The witness was standing
next to
till five when two of the robbers jumped over the counter to stand
behind the tills. She was then taken to the office where
she was
ordered to take out money. She informed the robbers that she had no
money but was accused of lying on this point. She responded
by saying
that they kept no keys as the store utilised a drop safe. She noticed
that some of the men were armed with firearms and
the three who were
with her in the office all had firearms. The firearms were pointed at
her and she was then told to open the
drawers where the float was
kept. She did so. She noted that two of the men wore navy workmen
overall tops, one wore a hat, another
wore a cap and all of them wore
face masks on their faces. They took the float and put it into a
backpack that they had arrived
with. Her cellular telephones, one
being a Huawei and the other a Nokia, were also taken. She was then
forced to open the till
drawers. She was not able to say how much
money had been taken from the tills. She was, however, confident that
approximately R6
000 in cash had been taken from the office. She was
then taken to the back of the store to the storeroom where she found
six female
staff members, the two male security guards and three
customers, all of whom were female. There were two robbers guarding
them
in the storeroom.
[49]
At this point in her evidence, it was necessary for the court to
adjourn due to the ravages
of load shedding. When her evidence
resumed the next day, it was heard in conjunction with a series of
video films of the events
of 2 February 2022 that had been recorded
by video cameras positioned at various points in the store. There
were approximately
16 video cameras that were operational on the day
of the robbery. Three principal locations were filmed: the front of
the store
showing the till points and roller door, the manageress’
tiny office and the storeroom at the back of the store. Thus, from

the camera stationed at the front of the store it was possible to
observe five robbers enter the store shortly after 17h15. They
could
be seen rounding up the staff and those members of the public still
within the store and herding them towards the back of
the store.
Whilst the video image was in colour and was remarkably crisp it was
not possible to discern the facial features of
the robbers because
they wore some form of head gear and some wore clothing that is
popularly known as a ‘hoody’, with
the hood up. The video
cameras did not capture the flight into the ceiling of the store by
the robbers but they did offer two different
camera angles of the
storeroom, permitting a clear image of who was in the storeroom. As I
shall explain later, the video footage
was more notable not for what
it showed but for what it did not show.
[50]
Ms Nala indicated that she had revised her estimate of how much money
had been taken from
the store from R6 000, as she had testified to
the day before, to R16,000. She also mentioned that she recovered
both her cellular
telephones although the one was damaged when she
received it back. It is to be noted that the indictment makes no
mention of the
store being robbed but rather indicates that Ms Nala
was robbed of her cellular telephones and cash, presumably because
she is
to be regarded as being in charge of, and possessing, the
store’s cash.
[51]
Ms Nala was not cross-examined by Mr Ntuli for accused one and two.
Under cross-examination
from Mr Daniso, she stated that she could
identify the robbers from their facial features but agreed that this
was not obvious
from the video footage. She also indicated that no
males had been in the store that afternoon to purchase a product
called isiWasho.
When accused three’s version was put to her,
she denied it as she did when accused four’s version was put to
her.
[52]
Stanley Mervin Armstrong is a Warrant Officer in the SAPS and has 33
years’ service
and is apparently a one-man satellite SAPS
station at St Lucia. He testified that on 2 February 2022 he had
heard the call for
assistance on the radio in St Lucia and even
though he was on his day off rushed from St Lucia to Mtubatuba to
assist his colleagues.
His evidence largely contradicted the evidence
of Sgts Mthembu and Msweli. It was, however, revealed that he had
never deposed
to a statement about the events and his evidence was
led by the State without it being in possession of his statement. His
name
did not appear on the list of witnesses proposed to be called by
the State.
[53]
Warrant Officer Armstrong confirmed that he, and not the members of
the TRT, had led the
sweep up operation of the floor of the store and
that he had found no one whatsoever on the floor of the store.
However, he had
noticed in the storeroom that there was a trail of
blood splattering the shelving therein. There was also a hole in the
ceiling
which led him to believe that the robbers had gone upwards
into the ceiling in their attempt to avoid being arrested. He had
found
a small step ladder in the store, climbed it, put his head
through the broken ceiling board and had shone his torch, which was
attached to his R5 rifle, into the roof void and found the four
accused in the ceiling. He called them towards him and they complied

with his instruction and walked face first towards him. The first
person in the line, however, fell through the ceiling boards
and
landed inside the store. The others then exited the ceiling through
the hole created by the person who had first fallen through
it.
[54]
Warrant Officer Armstrong confirmed that he had found no one in the
store office. He said
that neither Sgts Mthembu or Msweli had entered
the ceiling: he was the one who had put his head through the hole and
had found
the four men. Due to his size, for he is a very large man,
he did not enter the ceiling.
[55]
Warrant Officer Armstrong was not cross-examined by Mr Ntuli. To Mr.
Daniso, he stated
that none of the persons he found in the ceiling
who were armed had pointed their firearms at him so he did not use
the rifle that
he possessed. When Mr Daniso put accused three’s
version to Warrant Officer Armstrong, namely that he had been in the
store
as a customer when the robbery had occurred and he had then
hidden in the back of the store where he had been arrested by a white

male who told him to put his hands up, Warrant Officer Armstrong said
that that could all be true except that the four men were
found
hiding in the ceiling and not in the storeroom.
[56]
Xolile Nompumelelo Nhlangothi is employed at the store as a promoter
of a brand of cleansing
water. She was present during the robbery on
2 February 2022 and had been taken to the storeroom by the robbers
where she was made
to sit down on the floor. One of the robbers made
her put her cellular telephone into a plastic packet that he was
carrying. This
was apparently a Beauty Zone packet. When she put her
cellular telephone into the packet there were already other cellular
telephones
in it. She confirmed that an attempt was made by the men
to escape from the back door of the store and she had heard some
shots
being fired in the passageway outside the back door. When the
men went back into the store itself she heard another volley of shots

and when they then returned to the storeroom she noticed that one of
them had been wounded. Ultimately, she was part of the group
that
exited the store and as the security guard who was with him opened
the roller door she had squeezed her way underneath it
and made good
her escape. She was not cross-examined by either of the legal
representatives acting for the accused.
[57]
Thabiso Mininhle Dube is a security guard employed at the store. He
had not much experience
in that capacity on 2 February 2022, having
been employed there as a security guard for only a month. At about
17h15 on that day,
the store was about to close and he was waiting
for the last customers to leave. He rolled down the roller door at
about that time.
At that stage there were four customers in the
store. When he closed the roller door there were no male customers in
the store.
Contrary to what the other witnesses said, he advised that
there were actually three security guards employed by the store:
himself,
another security guard and a part-time security guard. One
of the customers made to leave the store and he opened the roller
door
for her to leave. At that stage, two men sneaked into the store.
He pointed out to them that the store was closing. Then another

person came in behind him and, in all, he saw four males in the
store. He was grabbed from behind by another male, thus he concluded

that there were actually five male persons in the store. The person
who grabbed him was armed and three or four of the other males
were
also carrying firearms, but he could not be certain of that. Everyone
in the store was collected together and taken to the
rear to the
storeroom where they were made to sit down. The robbers moved in and
out of the storeroom and at one stage took the
manager out with them.
He was also sent to check on what was happening at the front of the
store and when he did so he saw that
the SAPS were in attendance. He
was guarded by a firearm toting robber whilst he made his
observations at the front of the store.
When he returned to the
storeroom, the robbers went into the body of the store and he then
heard an exchange of gunfire. He, however,
remained in the storeroom.
When the robbers returned to the storeroom he noticed that two of
them were now injured.
[58]
The robbers then demanded his firearm from him, but he explained to
them that he did not
have a firearm when performing his duties. The
person asking him for the firearm pointed his firearm at him and
raised his voice
and said that he felt like shooting him there on the
spot. This interaction was recorded on the video footage and was
dramatic
in its effect: it certainly appeared that the witness was
about to be shot. The robbers then went out into the passageway
through
the rear door in the storeroom and he then heard
approximately three shots being fired. They then returned to the
storeroom and
said that they would leave the store via the front door
and he was told to go and open the roller door. He complied with
their
instructions and went and opened the roller door and whilst he
was doing so an SAPS member asked who he was and he replied that
he
was the security guard. When the door was open, he was told to lie
down on the floor by the SAPS but ran away from the store
towards
another shop where he then fell to the ground. Some of the employees
and the customers followed him out of the store. He
testified that
his cellular telephone was taken by the robbers and he has never
received it back. He stated that cellular telephones
were collected
from all the people in the store and placed in a plastic bag.
[59]
The witness was also shown the video footage of the robbery and gave
helpful explanatory
comments on certain aspects of the footage. He
confirmed that he no longer was employed at the store, primarily
because he had
been very badly affected by his experience and decided
that it would be better for him to take some time off to recover from
his
ordeal. He is now, again, employed as a security guard.
[60]
Under cross-examination, Mr Ntuli asked him whether he would deny
that there were other
male customers in the store at the time of the
robbery. His initial answer was that he would not deny that. The
court then asked
him whether there were any other male customers
depicted in any of the video footage that he had seen. He then
conceded that there
had been none in the video and nor had he seen
any in the store. Mr Daniso, who appears for accused three and four,
had no questions
of this witness.
[61]
Ntombi Gladys Mchunu was a customer in the store on the day of the
robbery. She was not
able to make her purchase because the robbery
occurred and she was herded into the storeroom at the back of the
store by the robbers.
She did not count them, but estimated that
there were approximately five or six robbers. Some had firearms. Her
Samsung cellular
telephone was taken from her by the robbers but she
ultimately recovered it from the SAPS. She identified two other males
as being
in the store, both of whom were the store’s security
guards. She narrated that at a certain stage, one of the robbers had

come back into the store room and was bleeding but she had no idea as
to how he had become injured. Shots were fired at the back
door as
the robbers tried to get out into the passageway. She heard further
gunfire from outside which appeared to be coming from
the front of
the store. She explained that the whole incident had terrified her.
Under cross-examination from Mr Ntuli, Ms Mchunu
rejected the notion
that there were any male customers in the store at the time of the
robbery.
[62]
Col Nthokolozeni Mqobizwe Mpungose is the station commander of SAPS
Mtubatuba. On the day
of the robbery, as he drove to the scene he
thought he saw Col Mdletshe’s motor vehicle at a traffic light
and telephoned
him. He alerted him to the robbery at the Plaza Mall.
Both then proceeded there and initially they went to the back of the
store.
There they were told that the robbers were still in the store
and that there were other SAPS officials at the front entrance to
the
store. They then proceeded to the front of the store. Capt Nkabinde
was present there and he ordered the robbers in the store
to lie
down. At that stage, the witness could only see two of the robbers in
the store, one of whom had a handgun but he could
not discern whether
it was a pistol or a revolver. They did not obey Capt Nkabinde’s
order to lie down but instead opened
fire at the SAPS officials
standing outside the store. The SAPS members fired back.
[63]
Things then went quiet for a while. Later, Capt Nkabinde gave an
instruction that all males
in the store were to lie down on the
floor, but the robbers mingled with the employees and the customers
who were in the store.
Two males, however, came forward and were
allowed to leave when they were identified as being security guards
employed in the store.
Backup was called for and the TRT arrived, as
did Warrant Officer Armstrong. They went into the store but the
witness remained
outside.
[64]
Ultimately, four men were removed from inside the store. It was later
discovered that there
were actually six men involved in the robbery
and the TRT members went back into the store. Gunshots within the
store were then
heard and the witness was confident that a robber,
who later died, had been shot by the members of the SAPS. The witness
was able
to identify the names of the four men arrested and stated
that the accused in the dock were the robbers who had been arrested
at
the store. He did, however, comment on certain physical changes
since then, such as the length of accused three’s hair, which

he referred to as an ‘afro’ and said that in February
2022 it had been much shorter.
[65]
Mr. Ntuli informed the witness that accused two would testify that he
told the witness
that he was a customer at the time but this was
denied. Mr Daniso elicited from the witness the fact that there had
only been a
single incident of shooting from the robbers inside the
store. The witness candidly admitted that he did not know who had
possessed
the firearms found at the scene as he had not been present
when they were arrested in the store. He mentioned that one of the
accused
that had a firearm wore blue workmen’s overalls and
remarked on the reflective strips on the knees of the trousers. Col
Mpungose
strongly rejected the notion that accused three and accused
four could have been customers in the store. He could not deny that

they might have been found in the storeroom. He explained that the
robbers had attempted to come out of the store with the employees
but
had then returned back into the store, the inference being that had
the two accused been customers they, too, would have left
the store
but they did not do so.
[66]
The next witness to testify was Samuel
Bhekumpukenyoni Mdletshe, who is a Colonel in the SAPS. He confirmed
that the previous witness
had called him as he was driving into the
town of Mtubatuba and as a consequence he went to the Plaza Mall. At
the scene, the roller
door at the store was down but after he arrived
it started to go up. Capt. Nkabinde shouted that all persons should
lie down and
he noticed two people inside the store, between the
aisles. One carried a revolver and was wearing blue overalls. He then
noticed
two other men closer to the roller door that he had not
initially noticed. He noticed them when the shooting first began. The
two
men at the roller door had firearms and therefore together with
the other armed man that he had seen, Col Mdletshe confirmed that

there were three firearms amongst the robbers. As the shooting
commenced, the men in the store began to move to the back of the

store.
[67]
Backup was called for, arrived and went in to the store. The witness
had been injured in
the first fusillade of shots, having suffered a
glancing wound to his right elbow caused by a bullet that had caused
his elbow
to bleed. He stated that a bullet had creased his elbow,
cutting him. He had to receive medical treatment from an ambulance
that
was summoned to the scene. When he went back to the store, he
saw the four men being arrested and was able to identify them from

their clothing as being the robbers. He confirmed that the SAPS had
seized firearms from those inside the store. It was put to
him by the
State Advocate that accused three and four would say that they were
customers in the store. The witness laughed, and
said they had to be
joking.
[68]
Mr. Ntuli elected not to ask any questions of this witness. Mr.
Daniso put it to the witness
that accused three and four would say
that they had been arrested in one of the storerooms as they had both
been customers and
had run into the storeroom to save their lives.
The witness said that he could not dispute where they had been
arrested as he had
not been present when they were arrested but said
that the two accused were not customers: he had seen them when the
firing had
occurred.
[69]
The matter then stood down. When the court resumed, I placed on
record that a meeting in
my chambers had occurred regarding the
number of storerooms in the store. The State had intended for another
witness to be called
to establish this fact, but I had suggested to
the defence counsel that they take full instructions from their
respective clients
on the number of storerooms that their respective
clients said existed. Following this instruction, I was advised that
it was now
common cause that there was but a single storeroom in the
store. This then was placed on record.
[70]
The final witness for the State was Emmanuel Mehlenkosi Kubekha, a
detective sergeant in
the SAPS at Mtubatuba. He is the investigating
officer in the matter. The sole purpose of his evidence was to
introduce the three
firearms discovered at the store. What should
have been relatively simple evidence was rendered more complicated by
the fact that
there were, in reality, three ballistic reports but
when the section 220 admissions were prepared at the beginning of the
trial,
those statements made reference only to a single ballistic
report. However, any difficulties that this error may have presented

were overcome when both counsel for the defence agreed that it had
always been intended that the section 220 admissions that the
accused
made would also apply to these two ballistic reports. By consent, the
additional ballistic reports where then received
by the court.
[71]
The three firearms recovered, being a LEW pistol, a Smith and Wesson
.38 revolver and a
Taurus 9 mm pistol were received as exhibits. The
ballistics reports stated that each of the firearms was capable of
discharging
a bullet. Mr Ntuli admitted on behalf of accused two that
the .38 revolver was his firearm, in respect of which he held a valid

license. D/Sgt Kubekha confirmed this fact.
[72]
The State then closed its case.
[73]
The first accused, Zakhele Vusi Gumbi, elected to give evidence in
his defence. He admitted
that he had been present in the store at the
time of the robbery but stated that he was there as a customer. He
was not able, in
the end result, to purchase anything from the store
because of the occurrence of the robbery. He claimed not to have seen
much
but revealed, for the first time, that he, too, had been a
victim in the robbery, having been robbed of R1 200 in cash by the
robbers.
He claimed to have been very terrified and to have obeyed
all the instructions given to him by the robbers. He was told to lie
on the floor and so he did so. He had been made to lie in one of the
passageways at the back of the store, where he lay for a long
time.
It is at that very spot that he was arrested. He stated that he was
lying next to the shelving but that he was not concealed
by anything.
He claimed that he had wanted to leave the store with the other
customers but when he heard the SAPS’ instruction
that all
males were to lie down, he did so.
[74]
He further explained that contrary to what the State witnesses had
said, he had, indeed,
been found by the TRT members when they did
their sweep through the store. This was never put to the TRT members
who were called
to testify. Rather than assist him, they had
assaulted him and had bound his hands with cable ties and had called
him a ‘criminal’.
He denied at any stage being in the
ceiling of the store. In essence, what he stated was that every fact
advanced as implicating
him in the events was a lie. At the SAPS
station he was accused of possessing a firearm, which he denied
doing, and had then suffered
having a plastic bag being put over his
face and being sprayed with pepper spray. He categorically denied
being in possession of
the Taurus pistol and he denied wearing
workmen’s overalls and said that he was wearing an Adidas navy
blue top with blue
stripes over the shoulder. He claimed not to have
seen any of the robbers.
[75]
Ms Ntsele for the State then cross examined accused one. He was
obviously questioned about
why he had never mentioned previously that
he, too, had been a victim of the robbers. Accused one said that he
had never mentioned
it before because everyone assumed that he was a
robber and he did not think that anyone would understand what he was
saying. He
added that he did not think anyone would believe him
because he was seen as being one of the robbers. It was suggested to
him that
he was making things up as he went along and that he was not
telling the truth. Later, he stated that he had not revealed the
truth
because he was confused. He was also asked about the assaults
which he claimed to have experienced, this too not having previously

been revealed. In particular, he alleged that Capt Nkabinde had
assaulted him, yet that witness was never confronted with this

allegation. The answer given was that accused one thought his counsel
would put it to Capt Nkabinde. Ultimately, accused one conceded
that
this may have been an error on his part.
[76]
Accused one was also challenged on why he had never put it to Cst
Sibiya that he had only
ever seen him at the SAPS station and had not
been searched by him inside the store. The blame for this omission
was laid at the
feet of his counsel. In a similar vein, it was
pointed out that Sgt Msweli had also testified that accused one had
been searched
by Cst Sibiya, but had also never been challenged on
this. The question had to be put a number of times before the witness
responded
and as a result the court felt constrained to caution
accused one about the danger of being perceived as being an evasive
witness.
[77]
Accused one was asked what time he had arrived at the store and said
at 16h45 and he knew
that to be the time because he had looked at his
watch. He had done so when he was opposite Shoprite, which is
directly opposite
the store. He explained that he had entered the
store and looked for face wash, but had not been able to find the
brand that he
required. He estimated that he had looked for the
product that he desired for approximately 30 minutes but had never
asked any
of the employees of the store to assist him in finding it.
He later denied that he had said that he had looked for the product
for 30 minutes. The court explained to him that whilst he had not
said that figure, he had said that he entered the store at 16h45
and
the videos shown to the court showed the robbers coming into the
store at 17h15. This meant he had looked for 30 minutes. He
said that
he understood. He explained further that he was made to lie on the
floor by the two robbers and he insisted that there
were, in fact,
only two robbers. He was later forced to concede that there were, in
fact, five robbers as depicted in the videos
but he could not say
whether his two robbers formed part of the bigger group because he
could not see their faces. He then explained
that the two who had
robbed him were wearing red and navy overalls. This was later
clarified to mean that one wore red overalls
and the other wore navy
overalls. He confirmed that he was not able to identify the two
robbers from the videos that were shown.
Ms Ntsele then stated that
it seemed as though accused one was describing a completely different
robbery to the one that was captured
on the videos.
[78]
Accused one said that he had been made to lie on the floor for a long
time but could not
say for how long because he did not have a watch.
When it was pointed out that he had previously said that he did have
a watch,
he stated that the watch was worn by a person with whom he
was walking before entering the store and not by himself. This
elicited
a remark from the State Advocate that these proceedings
appeared to be a joke to accused one. He explained that he had been
arrested
by SAPS members wearing masks, a hitherto unrevealed fact.
This was explained as being a mistake on his part. He claimed that he

was viciously assaulted when he was discovered by the SAPS members.
It was suggested to him that he would probably have been relieved

when he realized that the SAPS were in attendance as he was now going
to be saved from an awful predicament. The question had to
be put
three times before an answer was forthcoming. He was then asked
whether he had not called out to the SAPS members and told
them to
come and find him because he, too, was a victim of the robbery. He
said he had not done this. He confirmed that there were
other people
in the store but he had not counted them. There were both male and
female persons that he observed. He did not, however,
see Ms Mchunu
nor any of the other State witnesses. He did not see the manageress
but he had seen Mr. Dube, the security guard,
when he had walked into
the store. He never saw the promoter or any other staff members. The
court asked how this could be possible
considering that he had spent
half an hour looking for the product he was intending to purchase
before the robbery occurred. His
first response was that he could not
see them. When asked whether he had not seen the promoter who would
have been in the aisle
in which his product could be expected to have
been found, he said that she was in the aisle dealing with washes and
he was in
the soap aisle. Asked whether he had not gone to her aisle
as that was where the product that he was seeking would more likely
be found, his response was that he had no answer to that question.
[79]
Accused one also declined to comment on why he would have been left
in an aisle whilst
all the other occupants of the store had been
taken to the storeroom at the back. In fact, he repeatedly declined
to comment on
this issue.
[80]
Ms Ntsele put it to accused one that 32 bullets had been fired from
the firearm that he
possessed, but he responded that this was simply
not so. He confirmed that some people had been injured but he did not
know them.
He had seen the other accused when they were brought to
the SAPS van in which he was lodged but he had never seen them in the
store
prior to that. He confirmed that he saw some blood and said
that that this was apparent on all three of the accused put in the
SAPS van with him. The blood had been in the abdominal area of two of
the men and running down the side of the head and left shoulder
of
the other. The one bleeding from the head was accused three. None of
the people in the van with him were the people who had
robbed him.
[81]
The court then requested clarity from accused one on a certain
aspect. Given his plea explanation
that he was on the verge of paying
for his items when the robbery occurred, he was asked why he did not
appear in the video when
the robbers burst into the store. The angle
of the camera showed the door and the till points. The only way that
he could explain
this was to suggest that the plea was incorrect and
that he had not been on the point of paying when the robbery
occurred.
[82]
That was the end of the accused one’s evidence. He had no other
witnesses to call
and closed his case.
[83]
Accused two, Sibusiso Velenkosini Mkhwanazi, elected to testify. He
explained that he was
in the store on the day in question to purchase
cosmetics. He had not, in fact, made any such purchase by the time
that the robbery
occurred. He was between the shelves when he was
confronted by one of the robbers who noticed that he had a firearm on
him. He
was told to lie down and hand the firearm to the robber but
he refused to do so. He was then shot in the right upper thigh by the

robber who then took his firearm. He then lay down as instructed but
shortly thereafter was shoved to the back of the store, but
not into
the storeroom. At the place that he was taken to, he could see there
were some people already lying there but he could
not say that
accused one was one of them. He then lay on the floor, face down,
groaning. From then on he did not notice anything
but could hear
things and eventually the SAPS arrived. He informed them that he was
also a victim of the robbery but they did not
agree with him.
[84]
He denied wearing a green workman’s overall and also denied
that he was in possession
of his revolver when he was arrested. He
denied that he was part of the five robbers and reaffirmed that he
had not got into the
ceiling of the store. As regards the sweep of
the store done by the TRT members, he said that he was lying face
down and could
hear people walking about but that was as far as his
evidence on this point went. He denied that he had R760 in R20 notes
in his
underpants. He also complained of being assaulted when he was
arrested and repeated that he had been found at the back of the
store.
He had only seen his revolver at the SAPS station and not at
the store after it had been taken off him by the two robbers.
[85]
Under cross examination by Ms Ntsele, accused two stated that he had
only been accosted
by one robber in the store who was wearing a gray
overall. He was, however, taken by that person to another of the
robbers and
then indicated that he was not sure whether the overall
was gray or green in colour. He emphasized that the place that he was
taken
to was not the storeroom and there were other people that were
lying down. He estimated there to be either three or four such
persons
and they were males. He had seen no females lying with the
same group of people.
[86]
When asked which firearm had been used to shoot him, the witness
prevaricated but eventually
said that it was a pistol. He confirmed
that he had only seen the second robber when he had been taken to the
back. His attention
was then drawn to his plea explanation where he
said he saw two robbers when they came into the store. He explained
that the plea
was incorrect and that his counsel had incorrectly
recorded what he had been told. Pressed on this point because he had
confirmed
the statement as being correct by signing it, he explained
that he had not noticed the error. He was then asked by Ms Ntsele why

his plea explanation indicated that both robbers had noticed his
firearm. He acknowledged that the plea differed from what he was
now
saying but, again, blamed counsel for the alleged error in his plea.
[87]
Accused two was asked what he was looking to purchase in the store.
He said a lotion, soap,
a roll on and a spray on. He had difficulty
in explaining what these items were to be utilized for, particularly
the spray on.
He had walked up and down three aisles in selecting the
products that he desired, which he placed in a basket that he was
carrying.
He then could do nothing further because he was accosted by
the robber. He was then asked whether he saw the robber who stole his

firearm from him on the video shown to the court. He said that he did
not. The State Advocate then again repeated something that
she had
put to accused one, namely that it appeared that the court was trying
a different case to the case that accused two was
involved in. The
surprising answer that she received to this proposition was that
accused two could not dispute that. He confirmed
that he had not seen
accused one being robbed and again it was pointed out that this
appeared to be a further different robbery
that occurred. The
surprising response, again, was that this was clearly so. It was then
put to him that three different robberies
had happened in the same
store at the same time and accused two again agreed with that
proposition.
[88]
At the request of the State Advocate, accused two stepped from the
witness box and showed
the court the bullet wound that he had
sustained to his right thigh. The entrance wound was in the right
inner thigh and it appeared
to traverse across the front of his right
thigh and exit on the side of his thigh. Both entry and exit wounds
were discernible
on his thigh. Had a line been drawn between the two
wounds it would have run, more or less, parallel to the floor. As
regards his
evidence that he had not seen any of the State witnesses
in the store, he said that he would not put it that way but would
prefer
to say that he had not noticed them. Asked why he would not
have been put in the storeroom as the video showed the other
occupants
of the store had been, his only response was that someone
had been guarding the people with whom he lay. The people who he lay
with were not known to him and he confirmed that they did not testify
in the trial. He did not notice whether the second robber
possessed a
firearm but the person who dispossessed him of his revolver already
had a firearm and thus carried two firearms. He
did not know whether
his firearm had been used to fire any shots in the store.
[89]
Tellingly, accused two acknowledged that he had been with accused one
at the back of the
store when the SAPS arrived. However, it was then
put to him that accused one had said that he had first seen accused
two at the
van and not in the store. Accused two’s answer to
this proposition was difficult to understand. He was pressed severely
on
this point and was asked to explain why these two versions were
different. The question was repeated and repeatedly avoided by
accused two but, finally, he stated that he had first seen accused
one when accused one was lying on the floor with other unknown
males.
It was then pointed out to him that accused one had said that he had
lain on his own in one of the aisles of the store.
Accused two then
said that he was unable to comment further. The proposition was
repeated by the court but ultimately only generated
a long silence
from accused two. His final answer to this was: ‘I don’t
know what to say’.
[90]
Ms Ntsele suggested to accused two that the ballistics reports
indicated that his firearm
had been used at the scene. Accused two
said that he could not dispute that but that he never saw it being
used. He confirmed that
he had seen some of the SAPS witnesses at the
store but not all of them. He explained that he could not say that
they all were
not there but merely that he simply did not notice
them.
[91]
Accused two said that he first saw accused three and accused four in
the SAPS van. He had
not seen them before that. He, accused three and
accused four had all arrived at the van at the same time. Accused one
was already
in the van. He confirmed that he had not informed the
SAPS that he had been robbed as he was in too much pain. His
attention was
then drawn to the video shown to the court by Ms Ntsele
and it was suggested to him that he could clearly be identified in it
and
that he was limping in it as well. He denied that it was him.
[92]
The court then asked him why, on his pleaded vision, he did not
appear in any of the initial
videos in which the robbers are depicted
entering the store. His answers were largely irrelevant to the
question asked of him.
The court also asked him whether he came from
the same residential area as accused three and accused four, as this
is what was
indicated in the preamble to the indictment. He, however,
denied that was the case.
[93]
Accused two had no witnesses to call and closed his case after he
finished testifying.
[94]
Philani Carlos Mzimela is the third accused in this matter. Like
accused one and two, he
chose to testify in his defence. Led by Mr
Daniso, he confirmed that the plea that he had tendered at the
commencement of the trial
stood as his evidence in the matter.
However, he stated to Mr Daniso that he was not one of the group of
men who had approached
Capt Nkabinde at the entrance of the store and
was not one of the robbers.
[95]
He was thereafter exposed to cross-examination by Ms Ntsele. He
confirmed that he had been
in Mtubatuba to meet with his traditional
healer and was instructed to purchase a product referred to as
isiWasho and a further
product which was described as being ‘Ash
for Indians’. He explained that he walked into the store and
had gone to
the back of it and whilst there had heard instructions
being uttered for everyone to go to the back of the store. This had
apparently
been announced by people who had walked in armed with
firearms. He did not notice how many of these people there were. He,
however,
estimated that there were perhaps two or three in number, of
which one person had pointed at him. He had been engaged in looking

for the products that he required and estimated that he had only been
so engaged for about five minutes before the robbery occurred.
He
went into the storeroom and confirmed it was the same storeroom
depicted in the video that the court had watched. He described
there
being many people in the storeroom, some of whom he had seen in the
video. Some of them had even testified. He referred in
this regard to
Ms Mchunu, but he could not name anyone else because he had gone to
hide between the boxes in the storeroom. He
had seen the security
guard, Mr. Dube, but did not see the manageress of the store. When he
was asked why he had not put it to
either of these witnesses that he,
too, had been in the storeroom there was a long silence before he
explained that he lacked the
knowledge that he ought to have done so.
He explained that he had hidden behind the boxes so that the robbers
would not see him.
This, too, had not been put to any of the State
witnesses. Both the State Advocate and the court asked him what he
was hiding from:
the robbers knew that he was there because they had
ordered him to go into the storeroom. What was the point of hiding?
That question
elicited the response that he saw a firearm, which did
not address the question asked. He confirmed that he had remained
hiding
behind shelves in the storeroom for a long time, heard voices
talking but observed nothing and later heard gunshots. He would not

be drawn on how long he had actually been in hiding other than to say
that it was a long time and that he was in shock.
[96]
Having said that he could not hear what was being said, he remembered
hearing the word
‘key’ being used. He ascribed his
inability to be more precise to the fact that he was in shock. A
further answer explaining
this inability would be provided later in
re-examination. He could not describe how many shots had been fired
while he was hiding
nor could he tell whether the shots were coming
from inside or from outside the store. Whilst hiding, he confirmed
that it got
quiet for a while and then the lights went off and it
became dark. At that stage, a white member of the SAPS had found him
in the
storeroom and had taken him to the front of the store where he
was made to lie down. He then stated that the others were brought
to
where he was but he could not see from where they had come. He and
these other arrivals were searched and he was tied with cable
ties
and taken to an SAPS van. Those who went with him to the van were
accused two and accused four, with accused one already being
in the
van.
[97]
Accused three said that he did not see accused two or accused four in
the store nor had
he seen accused one. He was asked by Ms Ntsele
whether accused two and accused four had been brought to the spot
where he had been
made to lie from inside the store. A series of
questions had to be asked in this regard before it ultimately
transpired that accused
three agreed that accused two and accused
four had come to his position from inside the store.
[98]
The State Advocate then drew accused three’s attention to
paragraph seven of his
plea explanation. Paragraph seven stated that
he had been in the store and had heard gunshots and had run with
other people to
the storeroom to take cover. Before court, however,
he made no mention of gunshots but made mention of being instructed
by one
of the robbers to go to the storeroom. He was asked to explain
this difference. Firstly, he stated that the plea did not explain
the
situation correctly. Secondly, he stated that both the plea and his
evidence were correct and explained how this could be by
stating that
he was going to explain everything when he testified. He was asked
again to explain which version was correct which
resulted in the
witness falling into a long silence. Thirdly, a further answer was
then tendered when he said that his plea was
simply a summary and he
would give the full version when he was going to testify. This was
disputed by the State Advocate who said
that it was not a summary but
it was a different version. Accused three acknowledged that he could
see that there was a mistake.
[99]
Ms Ntsele then moved on to paragraph nine of his plea. In particular,
the following sentence
in that paragraph was concentrated upon by Ms
Ntsele:
‘
Further
that there was shooting which took place inside the shop.’
In
his earlier evidence, accused three had said repeatedly that he could
not determine whether any shots had been fired from inside
the store.
This conflicted with what was stated in paragraph nine of his plea.
When this was pointed out, there was again a long
silence before he
stated that there had been gunshots but he could not tell from where
they had been fired. The court then drew
his attention to the fact
that the plea stated that the shots had been from inside the store
and asked what had changed from the
time when the plea was drafted to
him giving evidence before the court. Ultimately, accused three
blamed his counsel and said that
the problem lay with the author of
his plea. However, this was disputed by the State who stated that he
had confirmed the correctness
of the plea when he had pleaded. This
was conceded by accused three.
[100]
Accused three repeated that whilst there may have been five robbers,
he only saw one and that was the person
wearing navy workmen’s
wear. He stated that he had contacted his traditional healer by
telephone, meaning by way of his cellular
telephone, just before he
had gone to the store. Unlike the other victims of the robbery, he
was never deprived of his cellular
telephone by the robbers. He
explained that this had not been taken from him because the robbers
could not see him. It was pointed
out to him that the robbers had
seen him because they had told him to go to the storeroom. When he
was asked why he had not used
his cellular telephone to call for help
from within the store he said that he had no airtime. He was asked
why he did not use a
free call or a call-back but simply gave the
same reply. He confirmed that he had never contacted his traditional
healer because
of the lack of airtime nor had he spoken with him
since. He could not telephone the traditional healer from the SAPS
station because
his cellular telephone had been taken from him and he
had not known the number off by heart. He had asked the SAPS for his
cellular
telephone but they had not given it to him. Asked whether he
intended to call the traditional healer, he said that he no longer

had his cellular telephone number. Asked to provide the traditional
healer’s name, accused three simply said he was a Mr
Cele and
did not know his residential address. The traditional healer was due
to meet him and cleanse him of his bad luck. It further
transpired
that this would require him being taken to the sea, something which
had not previously been revealed.
[101]
Considering that he had allegedly been arrested in the storeroom, the
court asked accused three why he had
not left the storeroom with the
other customers and staff members who had also been held there. They
had all ultimately exited
the store but he had not. His initial
response was that he was hiding. When it was pointed out that the
other people in the storeroom
had left, he explained that he did not
see them leave as he was facing downwards.
[102]
The court then asked him if the only reason for him being at the
store was to buy the ingredients that his
traditional healer
required. He said that was not the case. He explained that he was
meant to meet the traditional healer at the
Spar store. When asked
how the traditional healer knew he would be there he said that he had
been told to meet him there. Asked
how this information had been
conveyed to him as he had no airtime, he said that the traditional
healer had telephoned him whilst
he was in a taxi on the way to
Mtubatuba. The traditional healer had also telephoned him while he
was standing outside the Spar
store. The court pointed out that in
paragraph six of his plea he had stated that he had called the
traditional healer and asked
how that had occurred if he had no
airtime. Accused three explained that the information had not been
recorded properly in his
plea: he had sent the traditional healer a
call-back message but he conceded that he was the one who had badly
explained what had
occurred.
[103]
Under re-examination by Mr Daniso, he was asked to explain why he
could not hear what had been said by the
people in the storeroom
while he was hiding there. For the first time, accused three revealed
that he had been hiding with his
hands over his ears.
[104]
After concluding his testimony, accused three indicated that he
wished to call the traditional healer, Mr
Cele, to testify on his
behalf. Mr Daniso requested an adjournment for this purpose but the
court declined to grant such an adjournment.
After a vigorous
exchange of views between counsel and the court, Mr Daniso was
instructed to obtain the necessary information
from accused three so
that it could be passed to the investigating officer, who was seated
in court, and who would be requested
to try and locate Mr Cele.
Remarkably, given accused three’s statement that he did not
know the traditional healer’s
telephone number or address, a
telephone number purporting to be that of Mr Cele was written down on
a piece of paper together
with an address and was given to the
investigating officer.
[105]
In order to maximize the use of time, the evidence of the fourth
accused, who wished to testify, was then
interposed in the case of
accused three. Siyabonga Michael Sangweni confirmed that he, too, had
signed a section 115 statement
and that its contents were to be
regarded as his evidence in the matter. He, however, disputed that he
had shot at the SAPS members
and he denied that he had been in
possession of a firearm and no firearm had been found on him when he
was later searched. He indicated
that he had something to add to his
plea: when he had gone into the store the roller door was half open
as the store was about
to close. There was no security guard at the
entrance to the store.
[106]
Ms Ntsele then cross-examined him. He confirmed that he had entered
the store at about 17h15. He had previously
met the mother of his
child, who for convenience sake I will refer to as his ‘lady
friend’, and had given her money
for the child. She had wanted
to purchase some items from the store and asked him to come with her.
He explained that he had stood
long enough at work and he could not
tolerate further standing in a queue. His lady friend accordingly
went into the store alone
and he went to the taxi rank to get a
haircut. Having had his hair cut, he telephoned his lady friend to
find out where she was
but she did not answer the call. He explained
that he had agreed to meet up with her after she had made her
purchases in the store.
He stated that she would find him at the
place at which he had his hair cut. He confirmed that she had not
seen him go to have
a haircut and explained further that he had told
her to find him there.
[107]
When his lady friend did not come to the place where he had his hair
cut, he went back to the store. He
believed her to be within the
store and ‘sneaked’ underneath the roller door and went
in. He saw no one in the store
and tried to telephone his lady friend
again. He was about to leave when he heard a gunshot which seemed to
come from the direction
of the entrance door and he could hear people
talking in that vicinity. He said that he thought that there were
people in the store
but not on his side of the store. When he heard
gunshots, he concluded that there must be people in the store because
those standing
on the outside would not have fired into the store
without anyone being there. Having heard the gunshots, he got
injured. He was
unable to say whether the shots had come from within
or without the store. He stated that things happened fast. He was
again asked
whether people had fired from inside the store and he
responded by saying that the shots were nearby him on the left. He
was asked
again whether the shots had been fired from inside the
store and he finally stated that they had been. He was not able to
say who
had fired first. His reason for not being able to do so was
that he was allegedly still on the telephone. He did, however,
concede
that he was not talking on the telephone.
[108]
As regards his injury, he explained that he was shot in the right
thigh. He exited the witness box and showed
the court the entrance
and exit wounds on his right thigh. He was not able to say which of
the wounds was the entrance wound and
which was the exit wound. One
wound was on the right outer thigh, more towards the front of the
thigh, and the second wound was
lower down but on the side of the
thigh. As the court explained it at the time, had a line been drawn
connecting the two wounds
and dropped downwards it would have struck
the floor and if it was taken upwards it would have hit the ceiling.
The wounds were
therefore unlike the wounds suffered by accused two
where, as previously explained, had a line been drawn connecting the
two wounds
it would have been parallel to the floor. The wounds of
accused four were virtually at a right angle to the floor. He could
not
say that he had been shot by the SAPS and he could not say from
which direction the shot had come.
[109]
Accused four stated that the lights had gone off and he had gone to
the back of the store and saw the storeroom
door opening. People were
getting into the storeroom. He limped to the storeroom and went
inside and hid in an area where there
were boxes. As he was hiding,
he saw a person in navy overalls and he heard voices. He confirmed
that there were small groups of
people in the storeroom. On his left
were two or three ladies and to the right there were others
comprising a male and some females.
Having said he saw only one
robber he then confirmed that he had seen another robber wearing
workman’s pants and a T-shirt.
He then confirmed that he had
seen three robbers. People then left the storeroom but returned less
than five minutes later and
he heard talk that the security guard
must open the back door of the storeroom. Having heard movement, he
then heard gunshots from
the inside of the store and then things went
quiet. A few moments later he heard the SAPS talking and he came out
and noticed that
the people were gone. He was asked why he was hiding
and he said that he was not hiding but that he had been shot. He
explained
he was not part of the robbers and he acknowledged seeing
Capt Nkabinde and Warrant Officer Armstrong. He was then asked a
series
of questions to ascertain whether Warrant Officer Armstrong
had arrested him. The question was put three or four times and each

time elicited an indirect, inappropriate response. Ultimately,
accused four agreed that Warrant Officer Armstrong had arrested
him.
[110]
At this point accused four misspoke, so he claims. If he did so, he
misspoke repeatedly. He was asked how
he had been taken out of the
storeroom and he replied by saying that the SAPS had found:
‘
us
when we were hiding and took us out.’
He
was asked who he was referring to when he used the word ‘us’.
He said there were three people. As to who they were
he said he did
not see. He was again asked to whom he had been referring. He said
‘we’ were taken to the van. He was
asked who ‘us’
was intended to refer to. He then said it was a mistake on his part.
He had been alone. The court asked
him whether he had seen accused
three hiding as they seemed to be hiding in the same place and
received the reply that he had seen
him when he came out. He had not
seen him while he was hiding.
[111]
Accused four confirmed that he had seen some of the females in the
store and was asked whether he had considered
putting his version to
them when they testified so that they could comment upon it. He said
it had never crossed his mind. Considering
that he had been shot, he
was asked whether he had thought of asking any of the people in the
storeroom for assistance. He said
he did not think that he would get
any help. Then he said that the people in the storeroom were
terrified. Finally, he said he
did not trust them as he did not know
how he had been shot in the first place. The court suggested to him
that he had not been
shot by any of the people in the storeroom and
he agreed with that proposition. Asked then why he had not requested
assistance
from them he resorted to his previous answer, namely that
they were terrified.
[112]
Ms Ntsele then took accused four through his section 115 plea. His
attention was directed to paragraph six
thereof, where it was stated
that he had told his lady friend that he would wait for her outside
the store while she went inside.
He, on his new version, had gone to
have his haircut. He explained that he did wait outside the store but
then thought to himself
that he should go and get his hair cut. It
was pointed out that there was no reference to his haircut in his
plea. Asked why this
was not mentioned, his unhelpful explanation was
that when she went into the store he went to have a haircut.
[113]
His explanation that he had gone into the store with the roller door
half down drew a proposition from the
State that if that is what
occurred, then he was one of the robbers. There was no other way, due
regard being had to the video,
for him to have entered. Only the
robbers entered while the roller door was half down. He denied that
he was one of the robbers.
The court asked him whether he had seen
himself in the video and he indicated that he had not. In fact, he
stated that he was not
to be observed in any of the footage recorded
by the video cameras. The State Advocate said that he was, in fact,
recorded in the
footage because he was one of the robbers.
[114]
Accused four was then asked whether he had used his cellular
telephone to call for help whilst in the storeroom.
He said that he
had not because it would have revealed him. Asked whether he had sent
a message, he said the lights were off and
the light on his cellular
telephone would also have given him away if he had done this. It was
then put to him that not one witness,
other than accused three, had
said that the lights had gone off. He also confirmed that not at any
stage could it be observed in
any of the videos that the lights had
gone off. He was then asked if the lights had not gone off why he had
not sent a message
as the act of doing so would not have betrayed his
position. He then said that he was scared.
[115]
Reverting to the issue of his haircut, accused four agreed that his
decision to go and have a haircut was
a spur of the moment decision.
He confirmed that his lady friend did not know when she entered the
store that he was going to do
this. Asked then how he could have
anticipated that she would meet him at the place where he had his
haircut done, his only response
was that he was going to telephone
her and tell her where he was.
[116]
Accused four had no witnesses to call and closed his case.
[117]
The matter then stood down to the next day to allow the investigating
officer to attempt to locate Mr Cele,
the traditional healer that
accused three wished to call as a witness. Mr Daniso, who appears for
accused three, informed this
court on resumption the next day that Mr
Cele could not be located and that accused three dispensed with the
necessity of him being
called as a witness and closed his case.
[118]
All the counsel involved in the matter then joined in a request that
the matter stand to the following day
to enable them to prepare
argument. The court granted the request. The next day, the court was
advised by the State that it was
still not in a position to argue the
matter and requested a further period of time to prepare for this.
The matter was consequently
argued yesterday
[119]
Ms Ntsele called for the conviction of the accused on all of the
charges that they face. When engaged by
the court on whether evidence
had been presented on each charge upon which a conviction was sought,
there was a hesitation. It
was then conceded that no evidence was led
on count 8. But with regard to all the other charges, the State
believed it had adduced
evidence sufficient to convict the accused.
By way of contradistinction, the two defence advocates called for
accused one
to four to be acquitted on all those charges.
[120]
Before assessing the evidence, it is perhaps prudent, having
mentioned the interaction with the State Advocate
on whether evidence
was led on each charge in respect of which she called for a
conviction, to deal with those counts where, in
the court’s
opinion, insufficient or no evidence has been led:
(a)
Counts 1 to 7 are counts of robbery with aggravating circumstances.
No evidence
was led on count 4, count 6 and count 7 which deal with
the robbery of cellular telephones from Zandile Nkwanyana,
Siphamandla
Mthobisi Mhlanga and Silindile Ndwandwe respectively. The
names of these witnesses were never mentioned during the evidence and

the court simply has no idea whether they were even present in the
store on the day in question. The accused are therefore entitled
to
be acquitted on those counts;
(b)
Count 8 pertains to a charge of the theft of a cellular telephone
from one Qiniso
Bhekuyise Zikhali. As with counts 4, 6 and 7, no
evidence was led to place this person at the scene or to explain the
count of
theft. As noted, Ms Ntsele appeared to concede that a
conviction could not properly be claimed on this count. The accused
are accordingly
entitled to their acquittal on this count;
(c)
Counts 9 to 14 encompass the offense of attempted murder. In count 9,
it is alleged that the accused attempted to murder Siphamandla
Mthobisi Mhlanga, in count 10 it is alleged that they attempted to

murder Bongumusa Petros Mwelase and in count 11 it is alleged that
they attempted to murder Titus Bhekuzalo Nsibande. I heard no

evidence on either of these three counts and the accused are
therefore also entitled to their acquittal on these three counts.

Those orders will be made shortly.
[121]
Thus the counts that remain alive for determination are the counts of
robbery with aggravating circumstances
framed in counts 1, 2, 3 and
5, the counts of attempted murder framed in counts 12, 13 and 14,
count 15, being the count of murder
and counts 16, 17 and 18 being
the counts that relate to the unlawful possession of firearms and
ammunition.
[122]
I turn now to consider the quality of the evidence and of the
witnesses that presented that evidence. On
the remaining counts, the
State has presented a formidable quantity of evidence. For the large
part, the different witnesses called
in support of the State case
have presented a seamless narrative of the events on 2 February 2022.
That evidence was given by witnesses
who, generally, were entirely
credible and related their experiences and observations without
embellishment to the court. I was
particularly impressed by the
evidence of Capt Nkabinde and the evidence of the TRT members, Sgts
Mthembu and Msweli. The majority
of witnesses who testified on behalf
of the SAPS were experienced at their job and testified in a
forthright manner. They dealt
easily with the questions that were put
to them by the defence and they were confident, without being overly
so, of the version
that they advanced to the court. The witnesses who
were not members of the SAPS were no less impressive in their
testimony. They
endured a harrowing ordeal but were able to logically
and clearly convey what they had seen and experienced to the court.
[123]
Much of what the State witnesses testified to could be assessed
against the videos that exist of the events
in the store that
afternoon. That provides a degree of certainty regarding the accuracy
of their evidence and simply helps to cement
their respective
versions together. For example, several witnesses testified to the
accused wearing caps or hats on their heads
initially when they
entered the store. This could be confirmed in the video, where the
robbers were wearing various types of headgear.
It appears that none
were so attired when taken into custody. The photographic album is
replete with hats and caps that were discovered
at the scene after
the arrest of the accused.
[124]
The State witnesses were entirely fair in their evidence, none more
so than Capt Nkabinde. He would not
say that accused two fired his
revolver, despite saying that accused two possessed the weapon and
held it in a firing position.
He would not, furthermore, testify to
the accuracy of anything that he did not personally see, such as who
first fell out of the
ceiling into the store. When he made an error,
and his evidence was by no means perfect, he was quick to acknowledge
and own it.
Ms Nala, the manageress, too, would not testify to things
of which she was not sure. When a third robber joined the two who
held
her in her small office, she stated that she could not describe
him.
[125]
Having been impressed with the State’s evidence, it must
immediately be acknowledged that the State’s
case is not
without its problems and its imperfections. That, in its own way, is
strangely reassuring for it means that there has
not been any attempt
to get the State witnesses to adhere to a single, manufactured
version. For example, the evidence of Warrant
Officer Armstrong is at
odds with all the other evidence that was led. The calling of this
witness by the State perhaps demonstrates
the obvious danger of
calling a witness without first having obtained a statement from him.
He was called without the State having
a statement of his
observations. It could not have known what it was that he was going
to say in his evidence and it must have
been taken entirely by
surprise with the version that he advanced to the court. That version
marginalised the involvement of the
TRT members and rather promoted
Warrant Officer Armstrong as the dominant force at the scene of the
crime. He came across as a
gung ho, larger-than-life character and
appears to be a man of action but not necessarily a man of deep
reflection. Ms Ntsele described
him in argument as having suffered
from a ‘heroism syndrome’. That may well be an accurate
description of him. His
evidence left the impression that he was
trying to place himself at the centre of events to the exclusion of
the others deployed
to the store that evening. It seemed that he was
trying to create the impression that the role that he played was more
important
than any of the other actors in this drama. Rather than
have the TRT members as the people who discovered the four men in the
ceiling,
he claimed that glory for himself. He clearly has great
confidence in his abilities and little regard to conventions: he came
to
court dressed in a pair of shorts and a short sleeve, open necked
shirt and slipslops. Admittedly, it was his day off but it would
not
have taken much effort for him to clothe himself adequately. It did
not create the correct impression. Despite his evidence,
I am
satisfied that the thrust of the State case remains intact: the
accused were found, not in a storeroom or someplace else on
the floor
of the store, but in the ceiling of the store.
[126]
There are other difficulties in the State’s case. As previously
mentioned, the summary of substantial
facts states that accuseds one
and two were shot during the events in the store. In reality, accused
two and accused four were
the persons who sustained bullet wounds to
their thighs. Ms Ntsele indicated that this would be cured by
evidence, and, indeed,
it was. In any event, accused two and accused
four both testified that they were the two persons who were shot and
accordingly
the inaccuracy in the summary of substantial facts is of
no moment.
[127]
As a general proposition, the four accused were appalling witnesses.
One is loath to make such generalizations
but I am prepared to do so
in this instance and to state that each one of them is an unmitigated
liar. Each of them tendered a
plea and it then appears that they each
forgot what they had pleaded because none of them were able to adhere
to the version contained
in their respective pleas. They made things
up as they went along and ultimately virtually each one of them
painted themselves
into a corner from which they could not extract
themselves. Each of them took the oath to tell the truth, but not one
of them paid
any heed to that oath. There are many weaknesses in the
versions of the accused. For example, all of them were in the store
but
none of them admits to seeing the others. Two of them hid in the
same place in the same small room but never saw each other. None
of
them were in the ceiling yet the ceiling was destroyed as the
photographic album reveals. None of them knew each other yet three
of
them come from the same Macekane neighbourhood near Empangeni,
according to the indictment.
[128]
Ms Ntsele argued that none of the accused were comfortable in the
witness box. She is entirely correct in
this observation. The court
made contemporaneous notes of the physical signs of their
uncomfortableness:
(a)
Accused one constantly looked down when faced with difficult
questions, and
then would shift swiftly and repeatedly from side to
side as he struggled to formulate his answer. From time to time he
would drag
his hands down his face or rub his face when pressurised
by Ms Ntsele;
(b)
Accused two initially habitually spoke with his hand in front of his
mouth,
with a sullen expression on his face;
(c)
Accused three wiped his face with a cloth that he produced when he
was
placed under pressure by Ms Ntsele; and
(d)
Accused four rubbed his hands and then his face when
contemplating difficult
questions put to him.
In
short, their physical conduct was not reassuring.
[129]
While their physical conduct was unimpressive, their demeanour in
dealing with questions posed of them was,
if anything, worse. Each of
them was evasive and would not answer certain questions. Accused one
was cautioned about his evasiveness
by the court. Questions had to be
repeated several times for his benefit before a relevant answer was
forthcoming. Accused two’s
evidence was peppered with long
silences when he was asked probing questions by the State. Accused
three was evasive when asked
where accused two and accused four came
from when he was taken to the front of the store and the question had
to be repeated three
times before he conceded that they had been
brought from within the store. For people who claimed not to know
each other, they
seemed to do their level best not to implicate or
incriminate each other.
[130]
The content of their evidence was also far from satisfactory and all
of them at some stage contradicted
themselves or introduced facts
that had previously not seen the light of day:
(a)
Accused one claimed to have looked at his watch at one stage and then
later
said that he did not have a watch. He also claimed that he was
robbed of R1 200 by the two robbers that he claimed executed the

robbery, a fact that went unmentioned in his plea and which was never
put to any of the State witnesses;
(b)
Accused two contradicted himself when he testified that he had only
seen the
second robber when taken to the back of the store: in his
plea he said that he saw two males enter the store;
(c)
Accused three contradicted himself when he stated that he was ordered
to go to the back of the store by a robber. In his plea he said that
he had heard a gunshot and had fled to the back of the store
to take
cover, never suggesting for a moment that he had seen who had
discharged the shot or that he had been ordered into the
storeroom;
and
(d)
Accused four contradicted himself regarding his testimony over going
for a haircut
and also when he said that he had seen one robber, then
changed it to two and then to three.
[131]
Not only did they contradict themselves, but some of the accused also
contradicted each other. Accused one
said that he had been forced by
the robbers to lie down in an aisle of the store by himself. Accused
two stated that he had encountered
accused one at the rear of the
store where he was lying with other people.
[132]
Earlier in this judgment I mentioned that the significance of the
videos is not so much what they reveal
but what they do not show.
What they do not depict is the versions of the accused. The videos,
in reality, sound a death knell
for the accuseds’ version of
events. The evidence of the State witnesses is compelling but the
existence of the videos is
a reassurance of the accuracy of their
recall of the events. Despite all of the accused claiming to be
customers of the store,
none of them appear in any of the videos as
customers. They deny that they are the robbers and therefore, despite
admittedly being
in the store, none of them allegedly appear in the
videos. Their version of events is simply not recorded in any of the
videos:
on the contrary, the State’s version is. According to
accused one and accused two, there were only two robbers, but the
videos
show unequivocally that there were five robbers in the store.
Despite accused one and two claiming that the two robbers wore
balaclavas,
none of the robbers (whatever the number who were
involved in the robbery) can be observed wearing them on the videos.
While photographs
were taken of the discarded headgear once the
accused were arrested, there are no photographs of discarded
balaclavas in the photographic
album.
[133]
There is the suggestion by the State that the accused may be observed
in the videos as they were the robbers.
I am not able to say so with
any great certainty given the fact that the facial features of the
persons recorded on the videos
are difficult to discern on the
videos, for the reasons previously explained, notwithstanding the
otherwise clear, crisp images
that comprise the videos. That having
been said, there is a single instance recorded in the storeroom,
where it is apparent that
the person appearing on the video is
accused two. I am, however, satisfied that the notwithstanding the
lack of clarity of the
videos, that the accused are the robbers.
[134]
While the videos do not permit us to view the accused as customers,
the fact that they purport to have been
customers is finally
destroyed by them being apprehended in the ceiling. That fact on its
own demonstrates the falsity of their
version of being innocent
shoppers.
[135]
Accused one and accused two roughly have the same type of defence and
accused three and accused four, more
or less, adhere to each other’s
version of events. That perhaps explains why they are represented by
different defence counsel.
Neither accused one nor accused two
identified the two robbers who accosted them as forming part of the
five robbers that were
demonstrably robbing the store in the videos.
That could mean that there were actually seven robbers in the store,
comprised of
the five robbers depicted in the videos and the two
robbers who robbed accused one and accused two. When the version of
accused
three and accused four is considered, they also did not
identify the persons who they say robbed them as forming part of the
five
robbers robbing the store. Thus, there could be another two
robbers in the store. The likelihood of there being three separate
groups of robbers, numbering up to nine people, robbing the same
store at the same time on the same day occurs only in French farces

and not in real life.
[136]
From the evidence led, it is apparent that the robbers were unable to
get out of the store once the SAPS
had arrived at the scene. This can
be accepted by virtue of the fact that they attempted to get out
through the back door but could
not shoot the padlock off, they could
not go through the front door because the SAPS were there armed and
waiting for them and
they tried to go through the ceiling but could
not find a way out that way either. Thus, it is safe to assume that
once the SAPS
arrived at the store, the robbers were trapped inside.
If that reasoning is sound, then what the accused propose is that the
SAPS
let the robbers, all of whom were male, whether five, seven or
nine in number, leave the store while at least two of them wore
balaclavas, or at least had them in their possession, and chose to
rather arrest bona fide customers innocently in the store to
make
purchases. The proposition merely has to be stated to be rejected.
How this could have occurred when there is overwhelming
evidence that
there were no male customers in the store at the time of the robbery
is unexplained.
[137]
In all of the circumstances, I am satisfied that the State’s
version is the correct version of events
and that the accuseds’
explanation for their presence in the store can safely be rejected.
They were accordingly not law
abiding shoppers but law breaking
robbers. I must thus find, as I do, that the accused were part of a
group of robbers who armed
themselves with the purpose of robbing the
store. The agreement to achieve this goal, aided by the use of
firearms, must mean that
they formed a common purpose to rob the
store and any person that that they found within the store. As Ms
Ntsele points out in
her heads of argument, common purpose is to be
found when two or more people agree to commit a crime or actively
associate in a
joint unlawful enterprise, each will be responsible
for specific criminal conduct committed by one of their number which
falls
within their common design. The conduct of each of them in the
execution of their common goal is thus imputed to all. The fact that

accused two, three and four all come from the same area suggests a
prior agreement to arm themselves and proceed to the store on
the day
in question. Where charges put to the accused rely on the existence
of such common purpose, I find that it has been established.
.
[138]
The fact that I have disbelieved the accuseds’ versions and
found the existence of common purpose
does not mean that the accused
must automatically be convicted on the remaining charges. I turn now
to deal with the specific charges
that remain alive. I shall deal
with those charges in the sequence in which they are mentioned in the
indictment.
[139]
Counts 1, 2, 3 and 5 are counts of robbery with aggravating
circumstances. In terms of section 1 of the
Act, aggravating
circumstances are defined as follows:
'aggravating
circumstances', in relation to –
(a)
......
(b)
robbery or attempted robbery, means –
(i) the wielding of a
fire-arm or any other dangerous weapon;
(ii) the infliction of
grievous bodily harm; or
(iii) a threat to inflict
grievous bodily harm,
by the offender or an
accomplice on the occasion when the offence is committed, whether
before or during or after the commission
of the offence;’
[140]
The group of which the four accused were members armed themselves
with firearms which are before the court
as exhibits 1, 2 and 3
respectively. The State witnesses testified that the robbers were
armed and they may be observed wielding
those firearms on the videos.
The robbers deprived the store of cash money and its customers and
staff members of their cellular
telephones using those self-same
firearms to force compliance from the victims of the robbery. On the
one video recorded in the
stockroom there is a moment when the
deceased demanded a firearm from Mr Dube (which he did not possess)
and when he discovered
that he had no firearm, the deceased pointed
his pistol at him and it seemed entirely inevitable that Mr Dube was
to be shot. Thankfully,
he was not. But there was in the clearest of
terms a real threat to inflict serious bodily harm on Mr Dube as
contemplated by the
definition of aggravating circumstances referred
to above. The accused are therefore to be convicted of robbery with
aggravating
circumstances on counts 1, 2, 3 and 5.
[141]
Counts
12, 13 and 14 are counts of attempted murder where the victims are
the high ranking SAPS officials standing outside the store.
In
S v
Ndlovu
,
[1]
Joubert
JA stated the following about attempted murder:
‘
Die
bestanddele van poging tot moord wat
per se
ʼn
misdaad is, is wederregtelikheid, opset en ʼn pogingshandeling.
Die strafbedreiging is gerig teen die wederregtelike
opsetlike
bedreiging van die lewe van ʼn mens. Die beskermde regsbelang is
die lewe van ʼn mens. ʼn Geykte voorbeeld
van voltooide
poging tot moord is waar A sy vuurwapen op B rig met die bedoeling om
hom te dood, en die skoot afvuur wat B mis
of verwond sodat B die
wederregtelike aanslag op sy lewe oorleef. A het alles van sy kant
gedoen om B te vermoor maar die moord
is onvoltooid. Die opset om die
slagoffer te vermoor kan afgelei word uit die pogingshandeling asook
ander aanvaarbare bewysmateriaal.
Die wederrregtelikheid van die
pogingshandeling is geleë in die bedreiging van ʼn
regsbelang, naamlik die lewe van ʼn
mens’.
[142]
Thus a person
is guilty of attempting to commit a crime if, intending to commit
that crime, he unlawfully engages in conduct that
is not merely
preparatory but has reached at least the commencement of the
execution of the intended crime. An attempt is completed
where the
criminal has done everything he can to commit the crime, but for some
reason the crime is not completed, such as where
the criminal shoots
at his victim but misses.
[143]
Applying that understanding, in this matter the four accused were
part of a bigger group of six persons
who armed themselves as best as
they could with firearms and must have reconciled themselves with the
fact that the firearms that
they had might, at some stage, have to be
employed to achieve their goal of committing robbery. The indictment
alleges a common
purpose on this count and I have already found that
common purpose to exist. Once the SAPS were in attendance at the
scene and
it became obvious to the accused that flight would be
difficult, they discharged those firearms at the SAPS members
standing outside
the main entrance to the store. That could only have
been done as a mechanism to allow them to escape. The firearm
possessed by
accused one fired some 32 bullets in all. In discharging
their firearms in the direction of the SAPS members, they must have
further
reconciled themselves with the fact that the bullets expelled
from their firearm.s might hit, injure or kill anyone standing
outside
the store. Nonetheless, they proceeded and fired at the SAPS
members. Col Mdletshe was struck by a bullet thus fired. He was,
fortunately,
only grazed by the projectile but that is due more to
good luck than good planning. There can be little doubt that in
conducting
themselves as aforesaid, all four accused, whether or not
they were one of the persons who discharged a firearm or not at the
SAPS,
are by virtue of common purpose guilty of the offense of
attempted murder and they are there are accordingly all found guilty
on
counts 12, 13 and 14.
[144]
Count 15 is a count of murder. The deceased on this count was not a
member of the public or of the staff
of the store nor a member of the
SAPS but one of the robbers forming part of the gang that had robbed
the store. He was not mistakenly
shot by the accused in the fury of a
wild gunfight: it is conceded by the State that he was killed by a
member of the SAPS, apparently
acting in self-defence, when the
deceased fired at them from his position in the ceiling. It is common
cause that the deceased
died from a firearm wound. There is no
ballistic or forensic evidence relating to which firearm was
responsible for his death.
There is no evidence from the State as to
which of the members of the SAPS fired the shot that killed the
deceased. The only witness
who directly deals with this aspect in his
evidence is Sgt Mthembu.
[145]
The
evidence establishes that five persons were in the ceiling of the
store. Four of them, being the four accused, were discovered
at the
same time. Despite accused one and accused two being armed, they did
not offer any resistance when discovered and decided,
as the sergeant
said in ‘Brave New World’,
[2]
to ‘come quietly’. In other words, they surrendered
peacefully knowing that they had run out of tarmac. They were
extracted from the ceiling, cable tied, removed from the store, and
placed in an SAPS van. Whilst all of this occurred, the fifth
robber
remained alone in the ceiling. Thus, when the deceased met his fate,
the accused were not within the store.
[146]
These facts
are narrated again in the light of the authority relied upon by the
State in seeking the conviction of the accused on
the count of
murdering the deceased. The case is
Nkosi
v The State
.
[3]
In that matter, the appellant was a member of a gang that attempted
to rob the owner of a business. During the course of the attempted

robbery, the owner of the business drew a firearm and began shooting
at the robbers During that gunfire, a member of the gang was
killed.
The appellant was convicted of murder despite the fact that he was
not the person who fired the shot that killed his fellow
gang member.
The matter was taken on appeal to the Supreme Court of Appeal, which
held that he had been correctly convicted. The
appellant had argued
that the deceased had embarked on a frolic of his own which caused
his own death and that the State had failed
to prove that the
appellant had the requisite intent to commit murder. The finding of
guilty in the court a quo appeared to have
been based upon the
concept of
dolus
eventualis
,
which also appears to be the case in this matter. The Supreme Court
of Appeal found that the robbers reasonably foresaw the likelihood
of
resistance and the possibility of a shootout and accordingly armed
themselves with loaded firearms. The shootout occurred in
the same
room where the robbery was being perpetrated and during the course of
that robbery. The conviction was accordingly in
order and the appeal
failed.
[147]
In
Nkosi
,
reference was made to the case of
S
v Molimi and another
,
[4]
a case relied on heavily by the appellant in his appeal in
Nkosi
.
In
Molimi
,
during the course of an armed robbery at a shopping mall, one of the
robbers took a young man hostage inside the store. A bystander
fired
at the robber but struck the hostage instead, killing him. The
robbery itself had been completed, albeit not without complications.

One of the charges against the appellant was in respect of the murder
of the hostage. The primary contention of the defence in
Molimi
was that the death of the hostage was not foreseeably part of the
common purpose to perpetrate the armed robbery. The Supreme Court
of
Appeal upheld this contention and Cachalia JA in so doing stated the
following:
‘
Once
all the participants in the common purpose foresaw the possibility
that anybody in the immediate vicinity of the scene could
be killed
by cross-fire, whether from a law enforcement official or a private
citizen, which in the circumstances of this case
they must have
done,
dolus eventualis
was proved.
[36]
But the taking of the hostage by accused 1 falls into a different
category. It is probable that at the time he took the hostage,
his
co-robbers had escaped through the exit of the shopping complex. He
was therefore on his own when he took the hostage while
seeking
refuge from the man who was pursuing him. By taking a hostage he had,
in my view, embarked on a frolic of his own. These
actions could
hardly have been foreseeable by the other participants in the common
purpose. To hold otherwise, as the court
a quo
did,
would render the concept of foreseeability so dangerously elastic as
to deprive it of any utility. To put it another
way, the common
purpose doctrine does not require each participant to know or foresee
every detail of the way in which the unlawful
result is brought
about. But neither does it require each participant to anticipate
every unlawful act in which each of the participants
may conceivably
engage in pursuit of the objectives of the common purpose. It is
apparent that the unlawful act of hostage taking
by accused 1, in the
circumstances of this case, was so unusual and so far removed from
what was foreseeable in the execution of
the common purpose that it
cannot be imputed to the appellants. The convictions relating to the
kidnapping and murder of the hostage
(counts 7 and 3) can therefore
not stand.’
[148]
The first part of that extract fortifies me in my finding that the
accused are, at least, guilty of the
offences of attempted murder, as
already previously found. In this matter, all of the robbers who went
into the store were found
in the ceiling. The four accused
surrendered without further violence, a fact that must have been
known to the deceased who was
present in the ceiling with them when
that occurred. The robbery had been completed but there was no
possibility of escape for
the participants. The accused were removed
from the store and were not present when the deceased allegedly
discharged a shot from
his firearm from the ceiling at the SAPS
members on the floor of the store. This was done not in the course of
the robbery and
was done at a time when the deceased was on his own.
His decision to fire at the SAPS was, in my view, to use Cachalia
JA’s
word, a ‘frolic’ of his own that the accused
could not have anticipated might occur.
[149]
In my view, given their peaceful surrender, it was not reasonably
foreseeable by the accused that the deceased
would conduct himself in
the fashion that he did. As Cachalia JA says in
Molimi
, it is
not necessary for each participant in an unlawful exercise to
anticipate every unlawful act in which each of the participants
may
conceivably engage in pursuit of the objectives of the common
purpose.
[150]
In my view, the facts in
Nkosi
are distinguishable from the
facts in this case. The facts in this case relate more to those found
in
Molimi
. The death of the deceased was occasioned not during
the course of the robbery, but in its aftermath. It did not happen in
the
same room as the robbery, but above it. The accused were not
present at the time the deceased met his death and the deceased was

on his own at the time that he made a decision to shoot at the SAPS.
I accordingly find that it was not reasonably foreseeable
by the
accused that this event would occur. In those circumstances, their
guilt has not been established on the count of murder
and they are
entitled to the benefit of any doubt that may exist. They are
therefore acquitted on count 15, being the charge of
murder.
[151]
Count 16 relates to the unlawful possession of a prohibited firearm,
namely a Taurus pistol, found in the
physical possession of accused
one. Count 17 relates to the unlawful possession of the .38 Smith and
Wesson revolver, and count
18 relates to the unlawful possession of
one round of ammunition for the revolver.
[152]
A firearm is said to be a prohibited firearm if it falls within the
definition of prohibited firearms that
may not be possessed in terms
of section 4 of the Fire Arms Control Act 60 of 2000. Section
4(1)(f)(iv) thereof reads as follows:
‘
(1)
The following firearms and devices are prohibited firearms and may
not be possessed or licensed
in terms of this Act, except as provided
for in sections 17, 18(5), 19 and 20(1)(b):
(f) any firearm –
…
(iv) the serial number or
any other identifying mark of which has been changed or removed
without the written permission of the
Registrar.’
There
is no suggestion that any of the provisos apply to the facts of this
case.
[153]
There was evidence that the Taurus pistol lacked the serial number
that it once had. It had been obliterated
from the weapon. It is thus
a prohibited firearm as contemplated by the Firearms Control Act.
[154]
It is
important to acknowledge that the unlawful possession of a firearm
is
a ‘circumstance crime’, not a ‘consequence crime’,
and the doctrine of common purpose does not apply
to the crime of
unlawful possession. This is explained in
S
v Makhubela & another
[5]
as
follows:
‘
.
. . the application of the doctrine of common purpose differs in
relation to “consequence crimes”, such as murder,
and in
relation to “circumstance crimes”, such as possession.
Burchell in
Principles of Criminal
Law
differentiates between the two
as follows:
“
The
common-purpose rule is invoked in the context of consequence crimes
in order to overcome prosecutorial problems of proving the
normal
causal contribution between the conduct of each and every participant
and the unlawful consequence. Strictly speaking, the
rule has no
application in the context of criminal conduct consisting only
of circumstances.”’
[155]
There is, therefore, no question of the concept of common purpose
being employed to found a conviction for
the unlawful possession of
the two firearms and the ammunition.
[156]
It is, however, possible for there to be a joint possession of
firearms.
The State in argument
indicated that it relies on joint possession of both the Taurus
pistol and the .38 Smith and Wesson revolver.
If that is the case, I
do not understand why the accused were not also jointly charged with
possessing the deceased’s firearm,
a LEW 9mm pistol.
[157]
Be
that as it may, the test for joint possession of an illegal firearm
and ammunition was set out in
S
v Nkosi,
[6]
where the court stated that it must be possible to properly infer
from the established facts that:
‘
(a)    the
group had the intention (
animus
)
to exercise possession of the guns through the actual detentor and
(b)    the
actual detentors had the intention to hold the guns on behalf of the
group.
Only
if both requirements are fulfilled can there be joint possession
involving the group as a whole and the detentors . . .
to
possess all the guns.’
[158]
The
Constitutional Cour, in
S
v Makhubela & another,
[7]
confirmed
the test in
S
v Nkosi
.
In
Leshilo
v S
,
[8]
the court held that:
‘
[t]he
mere fact that the accused participated in a robbery where his
co-perpetrators possessed firearms does not sustain beyond
reasonable
doubt, the inference that the accused possessed the firearms jointly
with them’.
[159]
In S v
Mbuli
,
[9]
the court pointed out that where the offence is ‘possession’
of a firearm, or, as in that case, a hand grenade, a conviction
of
joint possession can only be competent if more than one person
possesses the firearm. The Constitutional Court, in
Makhubela
v S
,
[10]
observed that there will be few factual scenarios which meet the
requirements of joint possession where there has been no actual

physical possession.
[11]
This
is due to the difficulty inherent in proving that the possessor had
the intention of possessing the firearm on behalf of the
entire
group, bearing in mind that being aware of, and even acquiescing to,
the possession of the firearm by one member of the
group, does not
translate into a guilty verdict for the others.
[160]
In this instance, as correctly pointed out by Ms Ntsele in argument,
and illustrated by the video taken
in the storeroom, there is
evidence of one firearm being handled by multiple accused persons. It
is noted that one person holds
the firearm when exiting the storeroom
to try and find a way out from the store via the passage at the rear
of the store and when
the group returns to the storeroom, the
original possessor of the firearm no longer has it but another does.
It is not possible
to determine which accused these are. There is,
however, evidence that accused four was seen to fire a firearm during
the robbery
but he did not possess it when ultimately arrested. It
seems to me that save for one accused, there was a general handling
of the
firearms taken to the store by the accused on 2 February 2022.
[161]
That exception is accused two. Captain Nkabinde, who was in all
respects an impressive and reliable witness,
made a telling statement
when he said that he never saw anyone else in possession of the .38
Smith and Wesson revolver. I have
already accepted that evidence. If
that is the case, then accused two was not part of any agreement to
jointly possess the other
firearms: he possessed only his firearm.
The other accused may be observed alternately being in possession of
a firearm. They fall
to be convicted on count 16 and accused two must
be acquitted.
[162]
On counts 17 and 18, accused two, who was found in possession of the
.38 revolver, cannot be convicted of
its unlawful possession or the
associated charge of possession of one round of live ammunition
capable of being discharged from
that weapon because he was lawfully
entitled to possess both as he was licenced to do so. So much was
conceded by D/Sgt Kubekha
when he testified. Given that I have found
that only he possessed that firearm, it follows that there can be no
prospect of convicting
the other accused of jointly possessing that
firearm and its ammunition. All the accused are consequently to be
acquitted on counts
17 and 18.
[163]
In the circumstances, I arrive at the following verdict:
1.
All the accused are acquitted on:
(a)
Count 4, being the count of robbery with aggravating circumstances of
Zandile Nkwanyana;
(b)
Count 6, being the count of robbery with aggravating circumstances of
Siphamandla Mthobisi Mhlanga;
(c)
Count 7, being the count of robbery with aggravating circumstances of
Silindile Ndwandwe;
(d)
Count 8, being the count of theft from Qiniso Bhekuyise Zikhali;
(e)
Count 9, being the attempted murder of Siphamandla Mthobisi Mhlanga;
(f)
Count 10, being the count of attempted murder of Bongamusa Petros

Mwelase;
(g)
Count 11, being the count of attempted murder of Titus Bhekuzalo
Nsibande;
(h)
Count 15, being the count of murder of Senzo Siphamandla Xulu;
(i)
Count 17, being the count of the unlawful possession of the
Smith and
Wesson .38 revolver; and
(j)
Count 18, being the unlawful possession of 1 round of ammunition

capable of being discharged from the aforesaid Smith and Wesson .38
revolver.
2.
Accused one is convicted on:
(a)
Count 1, being the count of robbery with aggravating circumstances of
Philile Patience Nala;
(b)
Count 2, being the count of robbery with aggravating circumstances of
Thabiso Minenhle Dube;
(c)
Count 3, being the count of robbery with aggravating circumstances of
Xolile Nompumelelo Nhlangoti;
(d)
Count 5, being the count of robbery with aggravating circumstances of
Ntombi Mchunu;
(e)
Count 12, being the count of the attempted murder of Steven Mandla
Nkabinde;
(f)
Count 13, being the count of attempted murder of Mthokozeleni
Nqobizwe
Mpungose;
(g)
Count 14, being the attempted murder of Samuel Bhekumpukunyoni
Mdletshe;
and
(h)
Count 16, being the unlawful possession of a prohibited firearm,
namely
the Taurus 9mm pistol.
3.
Accused two is convicted on:
(a)
Count 1, being the count of robbery with aggravating circumstances of
Philile
Patience Nala;
(b)
Count 2, being the count of robbery with aggravating circumstances of
Thabiso
Minenhle Dube;
(c)
Count 3, being the count of robbery with aggravating circumstances of
Xolile Nompumelelo Nhlangoti;
(d)
Count 5, being the count of robbery with aggravating circumstances of
Ntombi
Mchunu;
(e)
Count 12, being the count of the attempted murder of Steven Mandla
Nkabinde;
(f)
Count 13, being the count of attempted murder of Mthokozeleni
Nqobizwe
Mpungose; and
(g)
Count 14, being the attempted murder of Samuel Bhekumpukunyoni
Mdletshe.
4.
Accused two is acquitted on count 16, being the unlawful possession

of a prohibited firearm, namely the Taurus 9mm pistol.
5.
Accused three is convicted on:
(a)
Count 1, being the count of robbery with aggravating circumstances of
Philile Patience Nala;
(b)
Count 2, being the count of robbery with aggravating circumstances of
Thabiso Minenhle Dube;
(c)
Count 3, being the count of robbery with aggravating circumstances of
Xolile Nompumelelo Nhlangoti;
(d)
Count 5, being the count of robbery with aggravating circumstances of
Ntombi Mchunu;
(e)
Count 12, being the count of the attempted murder of Steven Mandla
Nkabinde;
(f)
Count 13, being the count of attempted murder of Mthokozeleni
Nqobizwe
Mpungose;
(g)
Count 14, being the attempted murder of Samuel Bhekumpukunyoni
Mdletshe;
and
(h)
Count 16, being the unlawful possession of a prohibited firearm,
namely
the Taurus 9mm pistol.
6.
Accused four is convicted on:
(a)
Count 1, being the count of robbery with aggravating circumstances of
Philile Patience Nala;
(b)
Count 2, being the count of robbery with aggravating circumstances of
Thabiso Minenhle Dube;
(c)
Count 3, being the count of robbery with aggravating circumstances of
Xolile Nompumelelo Nhlangoti;
(d)
Count 5, being the count of robbery with aggravating circumstances of
Ntombi Mchunu;
(e)
Count 12, being the count of the attempted murder of Steven Mandla
Nkabinde;
(f)
Count 13, being the count of attempted murder of Mthokozeleni
Nqobizwe
Mpungose;
(g)
Count 14, being the attempted murder of Samuel Bhekumpukunyoni
Mdletshe;
and
(h)
Count 16, being the unlawful possession of a prohibited firearm,
namely
the Taurus 9mm pistol.
MOSSOP
J
APPEARANCES
Counsel
for the State:
Ms
T P Ntsele
Instructed by:
Director of Public
Prosecutions,
Pietermaritzburg
Counsel
for accused one and two:
Mr
M R Ntuli
Instructed by:
Legal Aid
Durban
Counsel for accused
three and four:
Mr P Daniso
Instructed by:
Legal Aid
Durban
Date
of Hearing:
23,
26, 29, 30, 31 May 2023, 1, 2, 5, 6, 7, 8, 9, 12, 13 June 2023
Date
of Judgment:
13
June 2023
[1]
S v
Ndlovu
1984
(3) SA 23
(A)
at
page 26I-27.
[2]
Aldous Huxley
Brave
New World
,
1932.
[3]
Nkosi
v The State
[2015]
ZASCA 125.
[4]
S v
Molimi and another
[2006] ZASCA 3; 2006 (2) SACR 8 (SCA).
[5]
S
v Makhubela & another
2017
(2) SACR 665
(CC).
[6]
S
v Nkosi
1998
(1) SACR 284
(W)
286H-I.
[7]
S
v Makhubela & another
2017
(2) SACR 665
(CC),
para 46.
[8]
Leshilo
v S
[2020]
ZASCA 98
,
para 11.
[9]
S
v Mbuli
2003
(1) SACR 97 (SCA).
[10]
Makhubela
v S, Matjeke v S
[2017]
ZACC 36
;
2017(2) SACR 665 (CC).
[11]
Makhubela
v S supra
para
55.