S v Magwanyana (CC14/2021P) [2023] ZAKZPHC 127 (2 November 2023)

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[2023] ZAKZPHC 127
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S v Magwanyana (CC14/2021P) [2023] ZAKZPHC 127 (2 November 2023)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
number: CC14/2021P
In
the matter between:
THE
STATE
and
SENZO
MAGWANYANA

ACCUSED
Coram
:
Mossop J
Heard
:
23, 24, 25, 26, 30, 31 October 2023, 1, 2, 3 November 2023
Delivered
:
2, 3 November 2023
JUDGMENT
Mossop
J
:
[1]
On Valentine’s Day 2020, Mr
Siyabongwa Mlotshwa (the deceased) was murdered. He was shot in the
head with a firearm. He was
also robbed of a substantial quantity of
cash. He was on duty at the time of his death as a security guard,
being employed by the
security firm ‘G4S’ (G4S). He and a
colleague had gone to the Caltex petrol station in Kranskop,
KwaZulu-Natal (the
petrol station) to pick up cash when they were set
upon by a gang of men, who murdered the deceased and took off with
the cash
that he had uplifted from the petrol station and which he
was in the process of loading into his armoured vehicle. As they fled

the scene, the gang fired randomly at members of the public, wounding
several. The State alleges that the accused is one of the
members of
the gang. Indeed, he is the only alleged member of the gang on trial
before me.
[2]
The accused faced trial on 5 counts. The
first is a count of robbery of the deceased with aggravating
circumstances, the second
is a count of murder of the deceased and
the remaining counts are counts of attempted murder relating to the
random firing at members
of the public by the gang as they made their
escape. The State relies upon the provisions of section 51 of Act 105
of 1997 in respect
of all the counts. On count 1 that section is to
be read with Part II of schedule 2, on count 2 it is to be read with
Part I of
schedule 2 and on the balance of the counts it is to be
read with Part IV of schedule 2. Before he was called upon to plead
to
the charges, the court inquired from the accused whether he
understood what this all meant. He indicated that he did. His legal

representative, Mr Tengwa, also confirmed that he had informed his
client of the minimum sentence legislation.
[3]
Both Mr Tengwa and the State Advocate, Ms
Sokhela, are thanked for their assistance to the court over the
course of this trial.
Mr Tengwa has represented the accused with
admirable thought, vigour and passion.
[4]
The accused pleaded not guilty to all the
counts and elected not to disclose the basis of his defence. Certain
admissions were,
however, made by him. These related to the identity
of the deceased, the fact that his body suffered no further injuries
after
his death and prior to its examination at a post-mortem
conducted by Dr Elsabe Maria Combrink (Dr Combrink). The results of
the
post-mortem examination were also admitted and were handed in as
an exhibit. The chief post-mortem finding of Dr Combrink was:
‘
A
hole in the top of the back of the neck and bleeding along the skull
fracture to a fractured hole containing a bullet fragment
at a small
laceration in the upper right side of the head.’
The cause of death was,
thus, a gunshot wound to the head.
The defence also admitted
that photographs of the scene of the crime had been taken and a
photographic album was consequently handed
in by consent. Finally, it
was admitted that the petrol station was fitted with surveillance
cameras that were in a working condition
on 14 February 2020.
[5]
And so, to the evidence. Mr Florian Maome
(Mr Maome) is employed by G4S and was a work colleague of the
deceased. He testified that
on 14 February 2020 he was on duty with
the deceased and that they had gone to the petrol station to collect
monies. The petrol
station has a convenience store on its forecourt
(the convenience store). He was the driver of their armoured vehicle
and had reversed
it virtually up to the doorway of the convenience
store. The deceased alighted from the armoured vehicle and entered
the convenience
store pushing what was called a ‘tribus’
(tribus). This, judging from the photograph album and the description
provided
by certain of the witnesses, is a wheeled box into which
money is put and then moved about. The box is electronically
protected
and requires a button on it to be depressed, and remain
depressed, until it is connected to a further electrical device
inside
the armoured vehicle. If the button, once depressed, is not
continuously depressed, there is the prospect that an explosive
charge
within the tribus will detonate and stain the money therein
with ink.
[6]
Mr Maome testified that he positioned the
armoured vehicle so that he could look into the interior of the
convenience shop by observing
events therein through the rearward
facing camera that the vehicle is equipped with. He observed three
males busy at the refrigerators
within the convenience store prior to
the deceased entering. Having picked up the money being deposited
from a drop safe located
in an interior office within the convenience
store, the deceased proceeded to leave. The three men in the
convenience store approached
the deceased quickly. Mr Maome saw the
deceased raise his hands in a gesture of surrender. Realising that
danger was present, the
witness indicated that he momentarily took
his eyes off the events playing out in front of the rear facing
camera of his armoured
vehicle to press a panic button within the
armoured vehicle. At that precise moment, he heard a shot being
fired. The deceased
fell to the ground next to the armoured vehicle.
[7]
According to the witness, there were
apparently further members of the gang in attendance across the road
from the petrol station
in a white Ford Ranger bakkie (the Ranger).
The witness estimated that there were three or four additional
members of the gang
at the Ranger. Those additional members then
commenced firing in the direction of the petrol station and people in
the general
area thereof screamed and ran for cover. While the
armoured vehicle was not struck by this gunfire, a white bakkie with
a canopy
was hit.
[8]
Mr Maome saw the tribus containing the
money being taken by one of the three males who had been in the
convenience store, and it
was placed in the load area of the Ranger
across the road. The Ranger drove off and more shots were fired by
its occupants. The
witness later came to know that the tribus, as it
was required to do, had exploded shortly afterwards, and emitted a
spray of ink,
staining the bank notes inside it, rendering them
useless. The robbers consequently jettisoned the device and sped
away.
[9]
Mr Maome indicated that the three men
inside the convenience store were each armed with firearms, which he
testified were 9mm pistols.
[10]
The witness stated that he would not be
able to describe the members of the gang and he did not identify the
accused as being present
on the day in question.
[11]
Under cross examination, Mr Maome indicated
that after the South African Police Services (SAPS) arrived at the
scene, he had been
instructed to upload the detonated tribus and take
it to the Kranskop Police Station, which he did. He indicated that he
did not
know how much money was inside the tribus. He confirmed that
the three men were already in the convenience store when the deceased

entered to pick up the money and that they did not follow him in. He
explained further that he was unable to describe the three
men
because the quality of the image captured by the rear facing camera
on his armoured vehicle was not of a high quality: he described
the
image as being ‘blurry’.
[12]
Mr Maome described the injury to the
deceased as being a gunshot wound to his right cheek, below his right
eye. He thought that
what he saw was an exit wound. The court then
advised him that the post-mortem report did not describe such an
injury to the deceased’s
body nor did the photograph album
depict such an injury. The witness indicated that he may have been
confused and misled by the
blood that was on the deceased’s
face. As regards whether the three men were already in the
convenience store when the deceased
entered, the court asked whether
G4S picked up cash each day from the petrol station at the same time.
Mr Maome indicated that
they did do a pickup every day but varied the
time at which they called each day.
[13]
Ms Nomcebo Shinga (Ms Shinga) is a cashier
employed at the convenience store at the petrol station. She was on
duty on Valentine’s
Day in 2020 and indicated that the G4S
armoured vehicle had arrived at around 14h00 to pick up money. The
deceased had entered
the convenience store. After a few minutes she
then saw three men enter the convenience store. One of them walked to
a water fountain
(which she described as a basin) inside the
convenience store and drank some water. The other two men presented
themselves to the
witness at the till point and ordered a 1,5-litre
bottle of water. She fetched it. It is necessary to point out at this
stage that
the convenience store is not a self-help store: all the
products for sale are behind bars and behind the counter and the
cashier
must fetch the products for the customer. The man then said
that he had asked for a smaller bottle. Ms Shinga went and fetched a

smaller bottle. The man then said that he had ordered two small
bottles of water, not one. She, dutifully, exchanged the water
again.
One of them then said that he wanted to purchase some airtime, but
she was unable to give him change for the R20 that he
tendered to her
for the airtime.
[14]
The person who had been drinking water at
the water fountain then joined the other two men in front of Ms
Shinga’s till. Ms
Shinga described him as wearing a red bucket
hat, a white T-shirt, dark navy body warmer and khaki trousers. She
was not able to
describe the clothing of the other two men. At the
moment that the man wearing the red hat joined the men before Ms
Shinga, the
deceased was about to leave the convenience store. As the
deceased walked to the door of the convenience store, the man wearing

the red bucket hat, grabbed him from behind and fired a shot from a
firearm that he possessed.
[15]
The witness said that she saw the man in
the red hat’s face: she described him as having a light
complexion, a beard, traditional
cuts on his face and teeth that she
described as being ‘on top of each other’. Later, the
interpreter clarified that
a better description of the precise word
that the witness had used to describe the accused’s teeth was
‘crowded’.
[16]
Ms
Shinga indicated that her till point was about 8 metres from the
place where the shooting occurred. She did not know the man
in the
red hat prior to the shooting but she testified that she did see him
again after the terrible events of 14 February 2020.
This was at an
identification parade, which she said was conducted at Westville
Prison.
[1]
She and another
witness had been picked up by a Captain in the SAPS and conveyed to
the prison. She identified the accused as being
the person standing
at position one in the line-up of men that she was asked to consider.
[17]
Mr Tengwa then cross-examined Ms Shinga.
She confirmed that the deceased was already in the convenience store
when the three men
entered. Her inability to identify anyone other
than the accused was probed. She indicated that there was nothing
remarkable about
the other two men, who presented themselves as if
they were just ordinary customers. She indicated that the three men
did not converse
with each other while in the convenience store.
[18]
The witness confirmed that she had made a
statement to the SAPS, and it was duly proved and she was ultimately
shown it and cross
examined on its contents. What was initially
pointed out by Mr Tengwa was a different description of the accused’s
clothing:
in her statement she described him as wearing a red hat, a
navy striped T-shirt and ‘normal blue jean’. He also
carried
a small black men’s bag. She was asked by Mr Tengwa
whether she had changed her description of what the accused was
wearing
because she had viewed the video footage of the events after
deposing to her affidavit. She denied having ever seen the video
footage.
She asserted that the accused had been wearing khaki
trousers and not denims. She indicated that she had been in shock at
the time
that she deposed to her affidavit and that could explain the
difference in her description of the colour of the accused’s

trousers that she gave. She conceded, further, that nowhere in her
statement did she describe the person wearing the red hat as
having
traditional cuts on his face. The SAPS official who recorded her
statement had erred in not including this.
[19]
As regards the identification parade, the
witness confirmed that she and her friend, Mbali, had attended it
together. She stated
that she and Mbali were kept in the same office
before attending the identity parade and that Mbali had gone to the
parade first.
Mbali did not come back to the waiting room. Instead,
the witness had been fetched by the same SAPS official who had taken
Mbali
to the identity parade. Mr Tengwa showed Ms Shinga certain
photographs of the eleven men who constituted the identity parade.
The
accused, who appears in position one, clearly has a short beard.
The photographs were generally of poor quality, but it was put
to the
witness that the only other person who may have had a beard might be
the person standing at position eight. Ms Shinga agreed
with this. As
regards the lightness of his complexion, Ms Shinga also agreed, as
far as could be determined from the poor quality
photographs, that
only the accused and the person standing at position two could be
classified as having a light complexion.
[20]
Mr Tengwa put it to Ms Shinga that the
accused was not at the petrol station on 14 February 2020 and did not
wear a red bucket hat.
This was disputed by her. As to how she was
able to describe the accused as having ‘crowded teeth’ if
he did not communicate
with his companions, Ms Shinga stated that he
had opened his mouth as he ran to the door of the convenience store
in pursuit of
the deceased as he was leaving.
[21]
The previous manager of the petrol station
is Ms Amanda Mulder (Ms Mulder). She was on leave on 14 February
2020. However, immediately
after the shooting of the deceased, she
had been telephoned and the events reported to her, and she had gone
to the petrol station.
At the request of the SAPS, she made available
for viewing the video footage from the 36 cameras installed at the
petrol station.
She also transferred selected video footage recorded
by the cameras to a USB memory stick (the memory stick) which she
then placed
in a safe after she had compiled it. The memory stick was
a new one that had been purchased from the next-door store for the
express
purpose of preserving the video footage identified by the
members of the SAPS.  She confirmed that the amount of money
uploaded
from the petrol station’s drop-safe was R100 440,00
being the precise amount  mentioned in count one of the
indictment.
[22]
With the consent of the defence, the
selected video footage preserved on the memory stick was then
projected onto a screen placed
in the court room and Ms Mulder
provided a commentary when asked to do so during which she identified
places and people. The robbery
and murder were recorded by various
cameras in situ at the petrol station. All the cameras were
positioned at elevated positions
and thus everything was observed,
and recorded, looking downwards at events at an angle.
[23]
It serves no purpose to try and describe
what may be observed in the various video footage. But it may be
helpful to record the
time when significant events occurred, as
depicted on the timer present in all the footage, irrespective of
which camera footage
is being observed. This may help give an idea of
how quickly events occurred:
(a)
13:59:12:
The G4S armoured vehicle arrives and backs up to the entrance door to
the convenience
store. At that moment there are no men inside the
convenience store, only two women;
(b)
13:59:51:
The back door of the armoured vehicle opens, and the deceased emerges
from within
the vehicle and comes out the rear door with the tribus;
(c)
13:59:59:
The deceased takes one step from the back of the armoured vehicle and
enters
the convenience store pushing the tribus;
(d)
14:00:09:
The deceased goes through an internal security door to the petrol
station office
and moves out of camera range. At this stage there are
only two customers in the convenience store, both of whom are women.
One
is standing at an ATM and the other is at the pay point;
(e)
14:00:20:
The one lady at the ATM finishes off there and the lady who was at
the pay point
moves over to the ATM. There are still no men in the
convenience store;
(f)
14:01:05:
The lady who had first been at the ATM exits the convenience store at
the same
time as a man enters the convenience store;
(g)
14:01:50:
The lady at the ATM finishes there and the man who entered the
convenience store
moves to the ATM;
(h)
14:01:56:
The lady at the ATM leaves the convenience store. The only customer
that remains
within is the man at the ATM;
(i)
14:02:44:
Two men enter the convenience store and immediately go to the pay
point. One
of them has a black bag worn diagonally across his body;
(j)
14:02:57:
The man at the ATM can be observed holding the money that he has
withdrawn from
the ATM;
(k)
14:03:05:
A man wearing a red bucket hat, navy or black sleeveless body warmer,
white
vest and khaki trousers enters the convenience store. He moves
to the stand in front of a display fridge/warmer. He has a prominent

jawline that protrudes significantly;
(l)
14:03:15:
The man at the ATM exits the convenience store;
(m)
14h03:26:      The
man in the red hat crosses to the other side of the convenience store
and drinks water
from a drinking fountain;
(n)
14:03:58:
The man in the red hat joins the two men standing at the pay point;
(o)
14:04:14:
The first petrol station employee reporting for the next shift
arrives. Another
employee arrives shortly thereafter;
(p)
14h04:39:      The
deceased exits the internal office pushing the tribus and proceeds
through the burglar
gate onto the floor of the convenience store;
(q)
14:04:45:
The deceased is at the door of the convenience store. The three men
at the pay
point spring after him and the man in the red hat is seen
producing a firearm from inside his trousers. The tribus is left
standing
at the entrance to the convenience store. The two men who
first entered the convenience store have manhandled the deceased away

from the convenience store. The man in the red hat appears to shoot
the deceased. A fourth man, who had not been in the convenience

store, suddenly appears and makes off with the tribus;
(r)
14h04:48:      The
deceased can be seen making small movements on the floor of the
forecourt, lying close
to the back rear wheel of the armoured
vehicle.
The whole terrible event
had run its course over a period of a mere five and a half minutes.
[24]
Constable Mzothule Mazibuko (Cst Mazibuko)
is a member of the SAPS who was stationed at SAPS Amatimatola on 14
February 2020. On
that day he was on leave and, coincidentally,
walked past the petrol station at the exact moment that the robbery
was occurring,
en route to a car wash where his motor vehicle was
being cleaned. He testified that as he neared the car wash, he heard
a gunshot.
He proceeded to where he thought the gunshot had come
from. He observed the parked G4S armoured vehicle and saw the
deceased lying
on the ground. He observed some men jump into a bakkie
across the road from the petrol station. One of the men getting into
the
bakkie, whose make he could not recall, was a man wearing a red
hat, and a sleeveless body warmer. He then took up a position next
to
the deceased, who he said was bleeding and still moving. He did so to
secure the deceased’s firearm, which had not been
taken during
the attack upon him, although Cst Mazibuko testified that he actually
never touched the deceased, nor did he touch
the deceased’s
firearm. He called 112 on his cellular telephone, summoning the SAPS.
[25]
When the SAPS arrived at the petrol
station, Cst Mazibuko insisted on observing the camera footage made
available to the SAPS by
Ms Mulder. Whilst viewing the footage, a
telephone call was received by the SAPS, giving information on where
the perpetrators
of the murder and robbery could be found and
directing them to proceed in the direction of a place called
‘Mashayainyoni’.
The SAPS and Cst Mazibuko departed from
the petrol station and before getting to the road that would lead to
that place, a further
message was received that there had been
crossfire between some persons and other members of the SAPS. They
proceeded to the scene
where the crossfire had occurred. A motor
vehicle alleged to belong to the gang was observed. It appeared that
the driver of that
motor vehicle had lost control over it as it had
capsized but there were no occupants to be seen. Cst Mazibuko stated
that he had
seen that vehicle, which was a bakkie, across the road
from the petrol station at Kranskop. Information was received that
the occupants
of the bakkie had fled into the bush.
[26]
Whilst Cst Mazibuko and the other SAPS
members readied themselves to commence a search for the occupants of
the bakkie in the adjacent
bush, he observed that a crowd of
onlookers had gathered, apparently curious about what was going on.
Amongst the onlookers, Cst
Mazibuko saw a man wearing a sleeveless
body warmer and a bucket hat. The hat had had been reversed and the
red coloured fabric
that had previously been on the outside of the
hat was now on the inside and the interior of the bucket hat, which
was blue, was
now on the outside. Cst Mazibuko went to the man, who
was the accused, and placed him under arrest. He explained that he
was being
arrested for the offence of robbery with aggravating
circumstances. When Cst Mazibuko had first observed him, the man had
been
talking on a cellular telephone. The left side of his body,
particularly his left arm, was dirty and it appeared that he had
fallen
recently. Cst Mazibuko concluded that this had occurred
because he had fallen from the bakkie when it capsized.
[27]
The search proceeded in the bush for the
other occupants of the bakkie, but they could not be found. The place
at which the accused
was arrested was described by Cst Mazibuko as
being approximately 35 kilometres from the petrol station in
Kranskop. When he had
observed the person he believed to be the
accused getting in the bakkie outside the petrol station, Cst
Mazibuko estimated that
he had been about 15 metres from the accused.
He further estimated that he and the other SAPS members had watched
the video footage
for less than 30 minutes when the tip off had been
received, and that it took approximately 20 minutes to drive to the
scene where
the capsized bakkie was found.
[28]
After the State finished leading him, but
before cross examination commenced, the court asked Cst Mazibuko
whether he appeared in
any of the video footage recorded by the
cameras at the petrol station. He said that, as a matter of fact, he
did. Ms Sokhela was
then permitted to lead him on this aspect of his
evidence. Cst Mazibuko identified himself as appearing in certain
footage at the
time mark of 14h08.
[29]
In cross examination, it was put to Cst
Mazibuko that he could not have seen the person in the red hat cross
the road to the bakkie
as that occurred earlier in the chronology of
events relative to the arrival of Cst Mazibuko on the scene: it
happened 1 minute
before the witness is observed arriving on the
video footage. Cst Mazibuko stated that he had been at the scene much
longer and
had been part of the group of people that had initially
run away when further gunshots were fired by the gang.
[30]
Mr Tengwa proved a statement deposed to by
Cst Mazibuko. He then put it to him that he had not mentioned in
paragraph 3 thereof
that one of the gang wore a red hat. This was
conceded by the witness, but Cst Mazibuko pointed out that in
paragraph 4 he had
stated that one of the men was wearing:
‘
a
red-hat (sic), black/navy pull over and a T-shirt underneath.’
[31]
It was denied by Mr Tengwa on behalf of the
accused that the accused had been at the petrol station on the day in
question. It was
further asserted that he had been assaulted by Cst
Mazibuko when arrested. It was also denied that the accused was dirty
on his
left side. It was put to the witness that the accused was
arrested in a rural area near Maphumulo and not at the place
described
by Cst Mazibuko. Cst Mazibuko replied that he knew the area
very well and was quite certain where he had arrested the accused. It

was then put to him that the accused had been walking along a path
when Cst Mazibuko had arrested him. This was denied and Cst
Mazibuko
said there was no pathway where he arrested the accused. The version
put was that the accused had seen Cst Mazibuko, who
was looking at
his cellular telephone, who then looked up at the accused and then
arrested him. Cst Mazibuko stated that he did
not have his cellular
telephone with him on that day. This seems to contradict his earlier
statement that he had called 112 to
summon the SAPS to the scene of
the shooting at the petrol station. The final piece of the version
put to Cst Mazibuko was that
the accused had been in the area where
he was arrested as he was selling traditional herbs. Cst Mazibuko
then stated that the accused
had scratches on his left arm. Mr Tengwa
indicated that this was as a consequence of Cst Mazibuko assaulting
him with the butt
of an R5 rifle. This was denied by Cst Mazibuko. It
was also put to Cst Mazibuko that there was blood on the accused’s
trousers
and that this had come from the accused’s bleeding
nose. Cst Mazibuko replied that he did not recall seeing any blood on
the accused.
[32]
Mbalenhle
Nkosingiphile Bhengu is a petrol attendant at the petrol station. She
was on duty on Valentine’s Day 2020. She was
due to knock off
at 14h00 but the relief shift was late in arriving. She was on the
forecourt of the petrol station when she saw
three men enter the
convenience store. She later heard someone say ‘Voetsek’
and looked around to see who had said
this. She then heard a gunshot
and saw a man shooting at the deceased. The deceased lay on the
ground, and someone then grabbed
his money box. The men then ran away
firing shots, passing by the cashier’s office. The witness took
cover in a motor vehicle
owned by a Mr S’bonga Sibiya.
[2]
She described the three men as having grabbed the deceased from
behind, the accused had said ‘Voetsek’ and had then
shot
him. Of this she was certain. Prior to the men entering the
convenience store, Ms Bhengu indicated that they had not been
walking
together, but had followed each other in. She indicated that she saw
a man in a red hat when he entered the convenience
store. She had an
opportunity to view his face and described him as being light in
complexion, with traditional marks cut into
his face and with a
beard. He was clad in a white vest, a red bucket hat, khaki trousers
and a dark body warmer. She saw that man
accost the deceased and he
was the person who said ‘Voetsek’. That man was the
accused. She also saw him as he fled
the scene having shot the
deceased, running past the cashier’s window.
[33]
Ms Bhengu said that nothing obstructed her
view of the shooting and estimated that she was about two metres from
the spot where
the deceased was shot.
[34]
She testified that she attended an
identification parade with Ms Shinga, in Durban. She described how
they had waited together in
an office. Ms Shinga was taken to the
identity parade first and then she was taken in. She did not see Ms
Shinga again before going
in and she did not know where she had gone
to. At the identity parade she pointed out the person standing in
position one in the
line-up. That was the accused.
[35]
Ms Sokhela then requested Ms Bhengu to
explain why in her witness statement she had described two men and
not three as being in
the convenience store. Ms Bhengu indicated that
the night before she was called to give evidence, she had thought
about events
that she would have to describe when giving her evidence
and remembered that there had actually been three men and not two.
She
went on and stated that two of the men had held the deceased,
pointing firearms at his head and the man who had said ‘Voetsek’

fired the shot that killed the deceased. The word was said ‘loudly
but not too loudly’.
[36]
Ms Bhengu’s recollection that there
were actually three men and not just two was explored by Mr Tengwa in
cross examination.
She confirmed that the realisation had come to her
after her attendance at court the day before, when she had not been
called to
give her evidence. She denied discussing her evidence with
Ms Shinga who had testified the previous day, saying that she was not

in court when Ms Shinga testified.
[37]
The witness could not remember if all three
men in the convenience store were armed. She had not seen them
approach the deceased
as they were inside the convenience store when
they did that and she was outside on the forecourt of the petrol
station, albeit
close to the door to the convenience store. As
regards events at the identification parade, Ms Bhengu indicated that
she had been
‘pulled’ to go into the viewing room. She
insisted that Ms Shinga had first gone in, which contradicted what Ms
Shinga
had previously stated. She was certain that she had gone in
after Ms Shinga and indicated that Ms Shinga must have forgotten what

happened. While Ms Shinga entered the viewing room, Ms Bhengu stated
that she had waited in the passage leading to the viewing
room. She
was unable to recall if any other person standing in the line-up had
traditional cuts on his face. She, finally, stated
that while she
knew there were cameras installed at the petrol station, she did not
know of the existence of video footage recorded
by those cameras, nor
had she ever watched such video footage.
[38]
Mr Tengwa put it to Ms Bhengu that
according to the accused only one person had identified him at the
identity parade and that the
person who had made the identification
was not separated from the line-up by a pane of glass. Ms Bhengu said
she had identified
the accused but had not been in the same room as
him when she did so.
[39]
Detective Warrant Officer Thanasagren
Naidoo (DWO Naidoo) is an experienced detective employed by the SAPS
and testified that he
conducted the identity parade in this matter on
21 February 2020. He had been requested to assist the Organized Crime
Unit and
was not linked to the investigation of the murder and
robbery at the petrol station. He was advised by Warrant Officer T R
Ngcobo
on 18 February 2020 that there were two suspects and two
eyewitnesses. He agreed to assist. He had also been advised that the
suspects
and their legal representatives had been informed on 17
February 2020 that the identity parade would be held on 21 February
2020.
[40]
DWO Naidoo indicated that on the day of the
identity parade he had first met with the witnesses at the tuck shop
at the Durban Central
Police Station where the parade was to be held.
He explained the purpose of the parade and the procedure to be
followed to them
and asked if they preferred to attempt an
identification face-to-face or preferred to stand behind a one-way
glass. Both chose
the latter. The two witnesses were then transferred
to the witness waiting room.
[41]
DWO Naidoo went next to the holding cells
and spoke to the two suspects, one of whom was the accused. He
informed them that he was
not involved in the investigation of the
crimes at Kranskop and also explained to them the procedure to be
followed at the identification
parade. He asked them if they had any
people that they would like to have populate the identity parade and
they replied in the
negative. He then indicated that they should
choose people who were in custody for this purpose and took them to
the holding cells
where they harvested nine people to join them in
the identity parade. There were thus eleven people in the line-up,
including the
two suspects.
[42]
The suspects indicated that they had a
Legal Aid representative assigned to them. As a consequence, DWO
Naidoo telephoned the Kranskop
Magistrate’s Court to ascertain
where the legal representative was but there was no response from the
court. He explained
this to the two suspects who indicated that they
were happy to proceed without the legal representative being present.
If they
were not prepared to proceed, DWO Naidoo indicated that he
would have immediately stopped the identity parade.
[43]
All eleven persons who were to stand at the
identity parade were then given crime scene overalls to put on by DWO
Naidoo. The crime
scene overalls are an innovation thought up by DWO
Naidoo, who estimates that he has conducted 60 to 70 such parades
over the course
of his 33 years’ employment with the SAPS.
The two suspects were then allowed to arrange the positions that each
person
would occupy in the line-up. Once final positions had been
agreed upon by the two suspects, a photograph was taken and DWO
Naidoo
left the line-up room and proceeded to the viewing room.
[44]
The viewing room is a room within the
line-up room. The occupants within the viewing room look through
one-way glass into the line-up
room. The SAPS officer conducting the
parade communicates with those in the line-up room through an
intercom. Present in the line-up
room was also a photographer and an
interpreter.
[45]
DWO Naidoo testified that the first witness
called to the viewing room was Ms Shinga, validating Ms Bhengu’s
recollection
of events. DWO Naidoo recorded that it took her 10
seconds to identify the accused, who stood at position one in the
line-up. She
described the reason for her choice as being the person
who had been shooting at the security guard. He noted in his records
that
the witness was confident but scared and had to be constantly
reassured that she could not be seen. Ms Shinga was then taken out
of
the viewing room to another room and did not come into contact with
the next witness, Ms Bhengu. Before Ms Bhengu entered the
viewing
room, the two suspects were asked if they would like to change the
positions of anyone on the line-up, but both indicated
that they were
content to leave it unchanged.
[46]
Ms Bhengu entered the viewing room and took
28 seconds to identify the accused, who continued to stand in
position one. The witness
described him to DWO Naidoo as being the
person shooting at the G4S guard. DWO Naidoo went into the line-up
room and told the participants
that the parade was over. He recorded
that the accused repeatedly protested that he knew nothing about the
crime and said, ‘you
can look at the cameras by the petrol
station.’
[47]
DWO Naidoo indicated that if a positive
identification is made by a person in the viewing room, the person
identified is requested
to step forward and the photographer in the
line-up room takes a photograph of the person identified.
[48]
To complete the formalities, DWO Naidoo
testified that he made an entry in the Occurrence Book in the charge
office recording the
fact of the identity parade being held.
[49]
In answer to a question from the court, DWO
Naidoo indicated that the glass in the viewing room is a fixed panel
and cannot be opened
and closed: it is permanently in place.
Including himself, there were seven SAPS officials engaged in the
conducting of the identity
parade, which included the photographer,
the interpreter, a guard utilised before the witnesses entered the
viewing room, an escort
to the viewing room, an escort from the
viewing room and a member who guarded the witnesses after they had
left the viewing room.
[50]
Cross examined by Mr Tengwa, DWO Naidoo
agreed that an identity parade had to be conducted fairly. In his
view, this identification
parade was fairly conducted ‘beyond a
shadow of a doubt’. He confirmed that he had not selected any
person to appear
in the line-up: the choices of who stood on the
parade were solely that of the accused and his fellow suspect. He
agreed that not
many persons had beards who stood in the line-up, but
he did not notice the complexion of the accused or the other
participants
in the line-up. He vehemently disputed Ms Bhengu’s
evidence that she had been taken with Ms Shinga to the viewing room
and
had waited in the passage while Ms Shinga entered that room. Had
that occurred, he stated that he would have immediately stopped
the
identity parade. He dismissed as a lie the assertion by the accused
that the other persons in the line-up had not been selected
by him
and the other suspect but that they had been found by the accused in
the line-up room when he entered that room. DWO Naidoo
indicated that
persons cannot be removed from holding cells without being booked
out, the implication being that they could not
wander into the
line-up room of their own volition. He also fiercely disputed that Ms
Shinga had performed a face-to-face pointing
out of the accused. He
testified that had that occurred, the photographer would have taken a
photograph of her with her hand on
the shoulder of the person that
she had pointed out. No such photograph existed as it had never been
taken.
[51]
A[...] L[...] N[...] (Mr N[...]) was a
scholar in grade 12 on 20 February 2020. After school on that day, at
about 14h00, he was
walking towards the petrol station when he saw
people running away as a white Ford Ranger drove toward him along the
road. He estimated
that he was between 400 and 600 metres from the
petrol station at that stage. He then heard shots. Seeing people
running, he began
to run as well and then he felt that he had been
shot. He realised that he had been shot in his right-hand ring finger
as it was
bleeding. The school principal was running ahead of him,
and the principal’s shirt got splattered with Mr N[...]’s
blood. He was running towards his school but before he got there, he
veered off into a scrap yard where he took cover. He was ultimately

taken by ambulance to Ntamjambili Hospital with two other students
who had also been shot.
[52]
Mr N[...] was certain that the shot that
had hit him had been fired from the approaching Ranger but could not
describe anyone in
that vehicle. He was treated at the hospital and
his injury bandaged. He has subsequently made a full recovery. He was
not cross
examined by Mr Tengwa.
[53]
Mr
T[...] P[...] M[...] (Mr M[...]) was also a grade 12 scholar at
Sesekele High School at Kranskop on 14 February 2020. After the
end
of the school day, and at about 14h00, he had gone to a place which
he described as being near Eskom in order to board his
transport
home. He heard gunshots coming from the direction of Aheer’s
store. That store features in the photograph album
and appears to be
located next to the petrol station.
[3]
He saw people walking fast towards a bakkie and then jumping into it.
He described the bakkie as being a white Ford. The bakkie
then drove
up the road towards him. The occupants of the load area of the bakkie
were firing shots as the vehicle came closer.
He was not able to say
how many people were in the load area. Mr M[...] started running.
[54]
In the subsequent confusion, a white VW
Polo motor vehicle collided into a teacher who was a pedestrian,
causing the teacher to
fall to the ground. Mr M[...], too, fell to
the ground. When he got to his feet he discovered, as he put it, that
his right arm
was ‘moving on its own’. He had been shot,
with the bullet entering his right upper bicep on the outside of his
arm,
causing a compound fracture of the humerus. He called out for
help and was eventually taken off to hospital in an ambulance. There,

his arm was placed in a plaster of Paris cast, which was subsequently
changed on a regular basis in subsequent hospital visits.
He has now
fully recovered.
[55]
The first investigating officer assigned to
investigate the events at the petrol station on Valentine’s Day
2022 was Warrant
Officer Themba Richard Ngcobo (WO Ngcobo). He has
since resigned from the SAPS, having previously been stationed at the
Organized
Crime Unit, Durban. The group on call at that Unit had done
the initial work on the matter on the day of the murder and robbery

and over the weekend and he had then been allocated the matter on
Monday, 17 February 2020.
[56]
He met the accused on that morning and
noted that he wore a black sleeveless windbreaker, a white vest and
khaki trousers.
[57]
He confirmed that he had requested
DWO Pillay to assist him by conducting an identity parade on 21
February 2020. He indicated that
he had informed the accused of the
holding of the identity parade on that date and informed him of his
rights. The accused said
that he wanted to contact his attorney. WO
Ngcobo took him to his office and permitted him the use of a
telephone and waited outside
while the accused used the telephone.
The accused then informed WO Ngcobo that his attorney indicated that
the identity parade
could be held in his absence.
[58]
The witness confirmed that the identity
parade was held on 21 February 2020 at the Durban Central Police
Station. The next day,
he attended upon DWO Pillay to obtain the
results and any statements made. WO Ngcobo then arranged for the
upliftment of the memory
stick containing the select video footage
prepared by Ms Mulder from the petrol station. When he observed the
video footage, he
was satisfied that the accused was depicted in it.
That, together with the fact that the accused had been pointed out at
the identification
parade by two eyewitnesses persuaded WO Ngcobo
that the accused should be charged, and he was taken to court.
[59]
WO
Ngcobo disclosed that three other men had also been arrested. Charges
against one of those men were withdrawn for lack of evidence
and
while there was fingerprint evidence that connected the other two men
to the bakkie, charges were surprisingly not pursued
against them
because those fingerprints were on the outside, and not the inside,
of the bakkie. WO Ngcobo also confirmed that two
motor vehicles had
actually been used in the robbery: a Ford Ranger bakkie and a blue
Hyundai.
[4]
The witness
testified that he had gone on leave shortly after receiving the
docket and did not investigate where the motor vehicles
had come
from, but he believed that one of them had been stolen.
[60]
Mr Tengwa then cross-examined WO Ngcobo. WO
Ngcobo immediately was forced to concede an error on his part. He had
said that after
the results of the identity parade had been received
by him and after he had viewed the video footage, he had charged the
accused.
It was put to him by Mr Tengwa that he had taken the accused
to the Kranskop Magistrate’s Court on 24 February 2020, a
proposition
with which WO Ngcobo agreed. Given that the accused had
been arrested on 14 February 2020, that would have meant that he had
only
been brought before a court ten days after that arrest. WO
Ngcobo referred to the docket and indicated that he had, in fact,
first
taken the accused to the Kranskop Magistrate’s Court on
17 February 2020 and the matter had then been remanded to 24 February

2020. He conceded to having made a mistake when he said the accused
had only been charged after the outcome of the identity parade
had
become known to him. He had, in fact, been charged earlier and had
made his first appearance on 17 February 2020. He pointed
out that 14
February 2020 was a Friday and he had taken the accused before a
court on the following Monday. Mr Tengwa insisted,
nonetheless, that
the accused’s first appearance had been on 24 February 2020,
which was denied by WO Ngcobo.
[61]
Mr Tengwa also denied on behalf of the
accused that the accused had an attorney by the time that the
identity parade had been held
as he had not yet appeared in court.
This was denied by WO Ngcobo. It was also denied by Mr Tengwa that
the accused’s constitutional
rights had been explained to him,
as WO Ngcobo stated had occurred. As regards his observations of the
video footage, WO Ngcobo
had to concede that the faces of the
participants in the robbery were not clearly depicted. But he added
that the accused was wearing
identical clothing to a person depicted
in the video footage. He also stated that the accused had a similar
walk, or gait, to the
person wearing the identical clothing in the
video footage. He confirmed that the accused had been wearing the
same clothing when
he first encountered him.
[62]
The court asked of WO Ngcobo if the charge
sheet that was used for the disputed court appearance on 17 February
2020 would record
the accused’s presence that day before the
court. WO Ngcobo said that it would.
[63]
The final witness for the State was Warrant
Officer Willem Abraham de Wit (WO de Wit). He is based at the
Organised Crime Unit in
Pietermaritzburg, known now as the ‘Hawks’.
He was on duty on 14 February 2020 and proceeded to Kranskop on being
informed
of the events that had occurred there. He arrived there just
after 16h00. He described what he found, including the positioning
of
the G4S armoured vehicle and the body of the deceased. Before
investigating the scene, he donned a protective suit designed
to
minimize contamination of the crime scene. He found a 9mm spent
cartridge near the deceased’s body and other spent cartridges

at the scene. A white bakkie with a canopy had been found near the
petrol station that had been damaged by two gunshots. He identified

this motor vehicle from photographs contained in the photograph
album.
[64]
WO de Wit confirmed that he had also
attended a scene approximately 3 kilometres from the petrol station
where the tribus had been
found. Its timer was still operative and
could be heard ticking, but it had already exploded. It appeared to
have been thrown to
the ground at some stage and he stated that all
the money within it had been stained with ink. The tribus and its
contents were
handed in at the SAP 13 by him and was subsequently
handed over to a representative of G4S, as was the firearm of the
deceased.
This witness was not crossed examined by Mr Tengwa.
[65]
The court asked WO De Wit to comment on the
gunshot damage to a Toyota motor vehicle depicted in the photograph
album. He indicated
that he did not see that vehicle on that day and
could not comment on where it was. As regards the damage to the
vehicle depicted
in the photograph, he noted that the bullet hole was
extremely large and was unlikely to have been fired from a 9mm
pistol. He
believed it would more likely have been fired from a
rifle, such as an R5. When preparing this judgment, I revisited the
videos
received by the court collectively as exhibit 1. There are
eight different clips from eight different cameras. On video clip
two,
at time marker 14:05:07, a man is seen emerging from the other
side of the street, firing a long firearm in the direction of the

petrol station. The robbers thus did not only possess handguns and
this may account for the damage to the Toyota motor vehicle.
[66]
The State then closed its case subject to
it being permitted to hand in the charge sheet from the Kranskop
Magistrate’s Court
upon it coming to hand.
[67]
Mr Tengwa sought an adjournment at this
stage to permit the accused to consider whether he wished to testify
or not. The court agreed
to give the accused two hours to consider
his position. When the court resumed, the State indicated that it had
now received a
copy of the charge sheet from the Kranskop
Magistrate’s Court and sought leave to reopen its case and hand
it in. Mr Tengwa,
fairly, did not object, noting that the State had
closed its case subject to it handing in the charge sheet when it was
received.
[68]
The
charge sheet revealed on the first page thereof that the accused’s
first appearance had been on 17 February 2020. However,
the
appearance pages made no reference to an actual appearance on that
date. The first narration of an appearance commences on
24 February
2020, being the date upon which the accused alleged he was first
taken before the court.
[5]
[69]
Mr Tengwa then indicated that the accused
would testify in his defence, and he was consequently called to the
witness box. Senzo
Jeffrey Magwanyana stated under oath that he had
not been at the petrol station in Kranskop on 14 February 2020. He
insisted that
he had been arrested in a rural area near Maphumulo at
a place that was across the Hlimbithwa River. He was there selling
traditional
herbs. He had arrived at that place from Durban, having
got a lift from Marianhill to Greytown in a truck. Having exited the
truck
in Greytown, he had got into another truck, whose destination
he had not known, but from which he had alighted at a place known
as
Maphumulo. There he had sold his traditional herbs door-to-door until
he was arrested by Cst Mazibuko. He had been assaulted
by the
constable, being hit with the butt of an R5 rifle, and had been
injured in his nose, which had bled. He stated that he had
not been
dirty when he was initially found by Cst Mazibuko, as Cst Mazibuko
had stated, but had become dirty through the assault
perpetrated on
him. Cst Mazibuko had also shown him photographs on his, Cst
Mazibuko’s, cellular telephone. This had never
been put to that
witness when he testified.
[70]
The accused indicated that all those who
implicated him in the events at the petrol station were liars. He
confidently stated that
the only person who had identified him at the
identification parade was Ms Shinga, who he referred to by her
forename, Nomcebo.
He stated that his rights had never been explained
to him and that he did not have an attorney: he stated, in fact, that
‘I
have never had an attorney in my life’.
[71]
As regards his clothing, he said he that he
had been wearing a red hat and that it had not been reversed at the
time of his arrest.
He agreed that he had been wearing a body warmer
that was sleeveless and navy. He also wore a white vest and while his
clothing
was the same as the person in the video footage, he, the
accused, had not been involved in the events at the petrol station in
Kranskop.
[72]
Under cross examination by Ms Sokhela, the
accused again confirmed he wore a navy body warmer and, after some
toing and froing,
that he wore a white vest as well as a red hat, as
had the person in the video footage taken at the petrol station. He
now asserted,
for the first time, that he had not worn khaki
trousers, but silver grey trousers. He agreed that he had worn
tekkies, as had the
man in the video footage, but insisted he had
worn navy tekkies with a white sole while the man in the video
footage wore black
tekkies with a white sole.
[73]
As regards his allegedly ‘crowded’
teeth, the accused denied that this was the case. The court
eventually inspected
his teeth. This is not a field in which the
court claims to possess any expertise. The accused does have a rather
pointy shaped
mouth and it does appear that he has several teeth
crammed into a small space that is slightly unusual. What is notable
is that
he has a rather prominent jaw that protrudes more than usual.
That may account for his somewhat irregular looking teeth.
[74]
The accused acknowledged that he had
previously worked as a security guard and that he had training in the
handling of firearms.
He had, however, never done cash in transit
work before. He confirmed that he had never set foot in the petrol
station on 14 February
2020, or on any other date for that matter.
[75]
After the original charge sheet relating to
proceedings before the Kranskop Magistrate’s Court was
produced, the accused backed
away from his original version that he
had only been taken to court on 24 February 2020. He now sought
refuge in the explanation
that he did not have a calendar where he
was detained. He ultimately withdrew the version entirely at the
invitation of Ms Sokhela.
[76]
The accused indicated that he had been
arrested at approximately 15h00 at the Maphumulo area. He had been
told the name of the area
by the occupants of the Ngubane homestead,
which was the last homestead that he had visited prior to being
arrested. He had been
to other homesteads in the area but had not
asked where he was from the occupants of those homesteads. From this,
it is apparent
that the accused did not know where he was. He
explained why he had not asked where he was from the occupants of
other homesteads
that he had visited that day in a general fashion,
indicating that his ability to do so depended on how he was welcomed
into a
homestead. He, however, did not ever state that he had not
been well received at any of the homesteads that he had previously
visited.
When it was asked of him whether he might have been arrested
at the Amatimatola area, as testified to by Cst Mazibuko, and not the

Maphumulo area, he resisted the notion saying that he had been told
it was the Maphumulo area. He was, however, obliged to concede
that
Cst Mazibuko knew the area better than he did. Rather than concede
that he might be wrong, he then contented himself with
the
proposition that the person who told him it was the Maphumulo area
must then have been wrong. The likelihood of a resident
of the area
being wrong about where they personally live will obviously have to
be considered.
[77]
It was suggested to the accused by Ms
Sokhela that he was seeking to avoid being associated with the
Amatimatola area because that
is where the two vehicles had been
recovered that had allegedly been used in the robbery at the petrol
station. To this the accused
said that the vehicles had actually been
recovered at the Maphumulo area and they had been parked on the road.
The bakkie had therefore
not capsized and was not damaged. This had
never been put to any witness and certainly not to Cst Mazibuko. He
described the vehicles
as being a white bakkie and a greenish Honda
or Hyundai. When it was pointed out that Cst Mazibuko had said the
vehicles had been
found at the Amatimatola area, the accused replied
by saying that a place can have two names. He did not say that this
was the
case with this particular area, but, again, rather spoke
generally.
[78]
The accused was also asked about the
photographs that Cst Mazibuko had allegedly shown him on his cellular
telephone. He described
the photographs as comprising pictures of
people standing. He could not recognise the background to those
photographs. It was pointed
out to him that Cst Mazibuko was not
confronted with this version. He claimed that he informed his legal
representative of this
but conceded that he had forgotten to remind
Mr Tengwa of this when Cst Mazibuko was being cross examined.
[79]
As regards the holding of the identity
parade, the accused commenced by denying that the line-up comprised
of eleven men. This,
too, was a new denial and had never been put to
DWO Naidoo. The accused insisted that there were only eight men in
the line-up.
As to why this elementary evidence was not challenged
when DWO Naidoo testified, the accused said that he did not want to
unnecessarily
delay the trial. He was placed in great difficulty when
the photographs of the participants in the identity parade were
mentioned
by Ms Sokhela. The accused insisted that the photographs
showed eight participants. He also said that there was a photograph
showing
four participants. He was wrong on both scores. After he
finally concentrated and counted the participants in the photographs,
he agreed that there were eleven men who had stood in the parade.
[80]
The accused was asked about seeing Ms
Shinga at the identity parade. He agreed that it had never been put
to her that she had participated
in a face-to-face pointing out.
[81]
Ms Sokhela then asked the accused how, if
he had never been to the petrol station, he knew that there were
video cameras there.
He responded by stating that the Hawks had told
him of this. They had also told him that he appeared in the video
footage. He was
then asked if he had told DWO Naidoo at the identity
parade that the video footage could be perused to confirm that he was
not
involved. He agreed that he had said this. Ms Sokhela asked him
then why he would have mentioned this to DWO Naidoo: why would he

urge DWO Naidoo to look at the footage if it allegedly contained his
image. His answer was not clear. He did, however, indicate,
for the
first time, that when he denied that he appeared on the video footage
he was beaten by some Indian policemen who had kicked
him and punched
him.
[82]
In response to a question from the court as
to why he would go to a rural area to sell traditional herbs, which
would in all probability
be cultivated in a rural area, the accused
indicated that he also sold other products, one of which he advised
was ‘crocodile
fat’. He had some with him on the day in
question. This was a new revelation. As to how he determined where to
go to make
his sales, his evidence was equally unclear. It also
appeared from his answers that what he was peddling had an
application both
for humans and for animals, for he apparently asked
a truck driver in Greytown where people with livestock lived. He was
told people
in the Maphumulo area had animals. He had then got into a
truck. He did not, however, know where the truck was headed.
[83]
The defence then closed its case and the
court heard argument. Ms Sokhela called for the conviction of the
accused on all the counts
that he faces, and Mr Tengwa called for his
acquittal on those counts.
[84]
The key issue in this matter, obviously, is
the issue of identity. That the robbery and murder occurred at the
petrol station on
Valentine’s Day 2020 admits of no doubt and
has never been in issue. The identity of the deceased and the
mechanism that
caused his death are also admitted by the defence.
[85]
It
is so that where identification is an issue, as in this case, the
evidence adduced should be considered cautiously. As Holmes
JA said
in the much-quoted matter of
S
v Mthetwa
:
[6]
‘
Because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution. It is
not enough for
the identifying witness to be honest: the reliability of his
observation must also be tested. This depends on various
factors,
such as lighting, visibility, and eyesight; the proximity of the
witness; his opportunity for observation, both as
to time and
situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility;
the accused's
face, voice, build, gait, and dress; the result of identification
parades, if any; and, of course, the evidence by
or on behalf of the
accused. The list is not exhaustive. These factors, or such of them
as are applicable in a particular case, are
not individually
decisive, but must be weighed one against the other, in the light of
the totality of the evidence, and the probabilities…’
[86]
The State has presented the evidence of
three eyewitnesses on the issue of identity. Two of those
eyewitnesses participated in a
formal identity parade and the State
placed much reliance on the outcome of that identity parade. Evidence
in the form of video
footage was also relied upon to establish the
presence of the gang and the identity of the accused. I have referred
to the men
as a gang previously in this judgment for that is, in
truth, what they were. They were not a gaggle of rag-tag
ne’er-do-wells,
who randomly, and spontaneously, committed a
series of crimes. They were a gang of individuals acting in unison in
terms of a set
plan in which each had a defined roll to play. The
video footage reveals this to be so: three men set upon the deceased,
a fourth
man was responsible for removing the tribus from the scene
and there was a sub-group of men waiting in two cars across the road

from the petrol station who opened fire on anyone who was in the area
at the time of the robbery.
[87]
The principal eyewitnesses presented to the
court by the State were Ms Shinga, Ms Bhengu and Cst Mazibuko. The
former two are employees
of the petrol station, Ms Shinga working
inside in the convenience store and Ms Bhengu working outdoors on the
forecourt. They
thus both offer different perspectives on the events
about which they told the court. They were both in close proximity to
the
events of 14 February 2020 and were in an excellent position to
make observations on the issue of identity. Given the cautionary

words of Holmes JA in
Mthethwa
,
their evidence must, however, be carefully considered.
[88]
In so doing, there is the fortunate fact
that whatever the witnesses might say may be compared with what the
video footage recorded,
which is supremely objective in its muteness.
Any doubts about the sequence of events narrated by the eyewitnesses
may profitably
be measured against the video footage, the accuracy of
which has not been challenged. That provides a degree of reassurance
when
assessing the observations of the principal eyewitnesses. That
exercise, for example, reveals that the first State witness, Mr
Maome, was entirely mistaken in what he claims to have observed. The
robbers were not already in the convenience store when the
deceased
went in as they may be observed entering the convenience store after
the deceased entered, nor could they have been standing
at the
refrigerators, as those were behind burglar bars and behind the
counter.
[89]
Ms Shinga was on the other side of the
counter in the convenience store when she attended to two of the
three men who had entered
the convenience store. She indicated that
the man, who she later identified as being the accused, entered the
store and made use
of a drinking fountain within the store. He then
sauntered over to the other two men who were before her. It was then,
so she testified,
that she had the opportunity to observe him. She
would have been at close range to him when she did so. As previously
noted in
this judgment, she had described the man in her written
statement as wearing a red hat, a navy striped T-shirt and blue
jeans.
She did not mention a blue body warmer or khaki trousers. That
was different to how she described him in her oral evidence. In her

oral evidence, she described the man as wearing a red hat, white
T-shirt, dark navy body warmer and khaki pants. There is a notable

difference in the description of the clothing. Gone is the striped
T-shirt and in its place is a white T-shirt and dark navy body

warmer. Gone, too, are the blue jeans, replaced with khaki trousers.
She went on to describe the facial features of the accused:
he had a
light complexion, traditional cuts to his face, a beard and teeth
that were on top of each other. But for the teeth, the
accused admits
that he has all those features. But the description of the accused’s
facial features is not mentioned in this
witnesses written statement.
Notwithstanding this, the witness took a scant 10 seconds to identify
the accused at the identity
parade.
[90]
I acknowledge that there may be a
difference between the written statement of a witness and the later
oral evidence of that witness.
Statements are often taken in haste by
SAPS officials who may not be properly equipped with the necessary
skills to do this. Statements
taken from witnesses by the SAPS are
notoriously lacking in detail and are often inaccurate and incomplete
and:
‘…
not
taken with the degree of care, accuracy and completeness which is
desirable. . .’
[7]
Comparing
the oral evidence of a witness against an earlier extra-curial
written statement made by that witness is a legitimate
method of
cross-examination and in this matter, it was fully employed by Mr
Tengwa, as he was entitled to do. Where a difference
is perceived to
exist between the two versions, however slight that difference may
be, it is seized upon and exploited to its maximum
potential
benefit.
[8]
But
i
n
S
v Mahlangu and another
,
the court noted that
:
‘
[t]here
will have to be indications other than a mere lack of detail in the
witness's statement to conclude that what the witness
said in court
was unsatisfactory or untruthful’.
[9]
[91]
I
agree with that statement. The court is required to consider the
evidence as a whole to determine in what respects the witness's

evidence may be accepted and in what respects it should be rejected.
The test is whether the differences were material:
[10]
‘
always
bearing in mind that a witness's testimony in court will almost
without exception be more detailed than what the witness
said in his
written statement’.
[11]
Deviations
which are not material are not to be used to discredit the witness.
In
S
v Mafaladiso en Andere
,
[12]
the
court held that the final task of the judge is to weigh up the
previous statement against viva voce evidence, to consider
all the
evidence and to decide whether it was reliable or not and whether the
truth has been told, despite any shortcomings. This
means that the
court is enjoined to consider the totality of the evidence to
ascertain if the truth has been told.
[92]
The external wall of the convenience store
holds its access door and the access door is accessed from the
forecourt of the petrol
station. Ms Shinga’s till point is at
right angles to the internal aspect of that external wall. Running
from the doorway
to the pay point is a window in the external wall
that permits sight of the forecourt from inside the convenience
store. Thus,
Ms Shinga would be in a prime position to observe what
occurred immediately outside the door to the convenience store.
[93]
While I immediately acknowledge the
difference in her descriptions of the clothing worn by the accused, I
also acknowledge that
her later identification of the accused was not
based upon his clothing, but upon his facial features. Sight must not
be lost of
the fact that all the men on the identity parade wore
identical crime scene overalls. I do not doubt for a minute that,
given her
position, she had an opportunity to view the facial
features of the man: after all, he stood right in front of her,
separated only
by the counter. That she got the clothing description
wrong initially is obvious when the video footage is considered.
While nothing
turns on that misdescription given her later
identification of the accused by his facial features, her inaccuracy
in this regard
impacts upon her overall reliability as a witness.
[94]
That inaccuracy further manifested itself
when she appeared to be confused about what had happened at the
identity parade. She incorrectly
asserted that Ms Bhengu had first
been called into the viewing room when, in truth, she was the first
to go in. Nothing really
turns on who went in first. But it again
highlights the fact that she was not entirely reliable in her recall
of events. I would
thus seek corroboration of her evidence from
someone else before I accepted her version of events. That
corroboration could be
in the form of the video footage.
[95]
Ms Bhengu on the other hand appeared to be
entirely reliable. Her narration of events was born out by the video
footage, as were
her movements and conduct. She testified that she
was two metres from the deceased when he was shot. Having observed
the video
footage, it appears to me that she may have underestimated
how far she was from the deceased: in my estimation, she was not two

metres away but was no further than four metres away. In any event,
she was on anyone’s version, not far from the spot where
the
deceased was gunned down.
[96]
Mr Tengwa argued that while Ms Bhengu may
have been very close to the action, the value of her evidence would
depend on what direction
she was looking in at the critical moment.
If she was facing the street, then the events, though close to her,
would have been
happening behind her back. Ms Sokhela, very correctly
though, pointed out that it had never been denied that the person who
shot
the deceased had exclaimed “Voetsek’ before shooting
him nor had it been denied that Ms Bhengu had testified that she
had
looked specifically to see who had uttered this word. That is how she
came to see what occurred. I am satisfied this establishes
that the
witness was looking in the direction of the unfolding murder and that
her close range observations can be relied upon.
Her ability to
identify the accused at the identity parade is also reassuring but
will be considered in greater detail shortly.
[97]
Cst Mazibuko was an impressive witness. He
presented himself well and appeared to be diligent and to take his
obligations as a member
of the SAPS seriously. He involved himself in
the events that he stumbled upon by chance notwithstanding that he
was on leave on
that day. As regards his observation of the accused,
he indicated that he was approximately 15 metres from the accused
when he
saw him running across the road and getting into the white
bakkie opposite the petrol station. While he was further away than Ms

Shinga and Ms Bhengu, he was not vastly distant from the accused,
being three quarters the length of a cricket pitch away, a cricket

pitch being 20.12 metres long. His impressions of the accused could
only have been reinforced when he almost immediately after
the murder
and robbery observed the video footage at the petrol station. That
observation would have confirmed what the accused
wore in no
uncertain terms. He estimated a viewing time of the video footage of
30 minutes and a drive to the scene of the capsized
bakkie of 20
minutes. He would therefore have been at the place of the capsized
bakkie just before 15h00, less than an hour after
the events at the
petrol station. This conforms entirely with the accused’s
version of events: he stated that he was arrested
shortly before
15h00. That is, relatively speaking, not long after the deceased was
murdered.
[98]
Cst Mazibuko clearly had a good idea of
what the accused wore, because he picked the accused out from the
crowd of onlookers at
the scene of the capsized bakkie
notwithstanding that his bucket hat had been reversed and was now
blue. The accused admitted that
he wore exactly what Cst Mazibuko had
described him as wearing, save that he insisted that he continued to
wear a red bucket hat
and had not reversed its colours. Thus, Cst
Mazibuko identified a person that was wearing precisely what the
person in the video
footage was wearing, save for the dispute over
the colour of the hat. It was only much later, and without it ever
being put to
any of the State witnesses, that the accused advanced
the version that he had not been wearing khaki trousers but had,
instead,
worn silver grey trousers.
[99]
While Cst Mazibuko was generally an
impressive witness, his evidence was not without flaw. He mentioned
in his evidence in chief
that he had used his cellular telephone at
the petrol station to summon the SAPS but then denied that he had his
cellular telephone
with him when the accused’s version was put
to him concerning his arrest.  The contradiction was stark, but
it may have
been more apparent than real: it is possible that Cst
Mazibuko did not take his cellular telephone with him when he went in
pursuit
of the robbers. Despite this anomaly, I find him to be a
reliable witness who was truthful and accurate in his evidence.
[100]
As previously mentioned, the State has
relied heavily upon the results of the identity parade conducted by
DWO Naidoo. Mr Tengwa
was entirely correct when he put it to DWO
Naidoo that such a parade must be fair to the accused otherwise its
value is questionable.
DWO Naidoo testified with regards to the
composition of the parade that he had asked the accused if he had any
people that he wished
to stand on the parade. This question was asked
of a man in detention who had limited means of communication with the
outside world.
What answer could DWO Naidoo reasonably have expected
from such a question? The obvious answer was ‘no’, and
that is
the answer that he received. As a consequence, the accused
was invited to select persons from the holding cells at the police
station
to stand on the identity parade and apparently did so,
although this is disputed by the accused.
[101]
It
appears that DWO Naidoo was content with this arrangement. I am not
as reassured by it. DWO Naidoo would have known of the rules

applicable to identity parades (the rules), given his self-professed
vast experience in arranging identity parades. The rules are
not
actually rules of law but are rules of SAPS practice based upon
considerations of fairness to the person required to appear
on the
parade. Those rules serve as a guideline to the SAPS officials that
are responsible for the conducting of identity parades.
To have
value, the identity parade must be conducted fairly. But, as was
stated in
S
v Bailey
:
[13]
‘
Just
like the right to a fair trial is not violated every time when the
evidence of a single witness or an accomplice is allowed,
such right
is, in my view, not violated where an identification parade is held
that may be regarded as less than perfect. At worst,
the weight to be
attached to such parade identification may be affected.’
This
approach was confirmed by Plasket J in
S
v T
,
[14]
where the learned judge stated that:
‘
[n]on-compliance
with a rule or rules is not fatal to the admissibility of
identification evidence but will usually have an effect
on the weight
to be attached to the evidence of identification.’
[102]
My difficulty with the identification
parade in this matter is the appearance of the other persons standing
on the parade with the
accused. Rule 8 of the rules reads as follows:
‘
The
suspect and persons in the parade should be more or less of the same
build, height, age and appearance and should have more
or less the
same occupation and be more or less similarly dressed.’
Where the suspect is
known to have sported a beard at the time of commission of the
offence, and had a beard at the time of the
holding of the identity
parade, it defies logic that the identity parade should only have one
person standing on it who had a beard,
namely the accused. In my
view, the same applies to traditional face marks. And to complexion,
for that matter. These issues appear
not to have been considered by
DWO Naidoo and no attempt was made by him to comply with this rule.
[103]
Rule 6 of the rules further stipulates
that:
‘
It
is generally undesirable that there should be more than one suspect
on the parade; and if a second is place on the parade, the
two
suspects should be more or less similar in general appearance and the
persons on the parade should be increased to at least
twelve to
sixteen.’
The parade fell short in
this regard as well: there were more than two suspects on the parade,
those two suspects were not similar
in general appearance and there
were less than 12 men in the line-up.
[104]
Rather than require the accused, who may
have had no knowledge of the rules, to pick the people who stood with
him, DWO Naidoo should
have used his vast experience to assist him in
this regard. Whether through ignorance, or whether, perhaps, even by
design, the
accused chose no one that looked like him to stand
together with him on the parade in that they did not have light
complexions,
they had no tribal cuts on their faces and they had no
beard. It is possible that there were no other people with such
characteristics
in custody at that time from which the accused could
choose. But that does not mean that just any men could be roped in to
stand
on the identity parade.
[105]
In
my view, the SAPS cannot rely on the inexperience of an accused
person and the difficult circumstances that he finds himself
in after
his arrest and then claim that the parade was fair because the
accused chose the people who stood alongside him.
In
R
v Kola
,
[15]
Schreiner
JA warned of the dangers of not complying with the rules of an
identification parade and concluded as follows:
‘
But
an identification parade though it ought to be a most important aid
to the administration of justice may become a grave source
of danger
if it creates an impression which is false as to the capacity of the
witness to identify the accused without the aid
of his compromising
position in the dock. Unsatisfactory as it may be to rely upon the
evidence of identification given by a witness
not well acquainted
with the accused, if that witness has not been tested by means of a
parade, it is worse to rely upon a witness
whose evidence carries
with it the hall-mark of such a test if in fact the hall-mark is
spurious. Of course an identification
parade is not necessarily
useless because it is imperfect. In some respects the quality of
the parade must necessarily be
a question of degree.’
[106]
My view that DWO Naidoo should have done
more to ensure that the people who stood with the accused appeared
like him is reinforced
by the fact that whilst the accused had, on
the State’s version, an attorney, that attorney was not present
to advise the
accused.
[107]
I am accordingly not satisfied that the
identity parade was ‘without a shadow of a doubt’ fair to
the accused, as it
was professed to be by DWO Naidoo. That the
accused was identified by both witnesses is beyond doubt. But their
task was made all
the easier because of the composition of the
identity parade. I must therefore attach far less, if any, weight to
the identification
than I would have if it was conducted in a more
regular fashion.
[108]
I
turn now to consider the accused’s evidence. He was a miserable
witness. His version is, simply put, incredible. He appears
to have
randomly chosen to go to Greytown on the day in question and relied
on the goodwill of truck drivers to get him there.
I suppose that
there is nothing inherently improbable about this: hitchhiking is a
common enough method of getting around. But
quite why he would find
himself in the rural area surrounding Greytown is mystifying and
unconvincing. His initial version was
that he was proceeding
door-to-door selling traditional herbs. That then changed that
version when he indicated that he also sold,
and had with him,
‘crocodile fat’. He tried to press upon the court that
this substance is also classified as a traditional
herb. I remain
unpersuaded of this. It is clearly not a herb, which is usually
regarded as being
a
flowering plant whose stem above ground does not become woody.
[16]
He appeared to have felt pressured to include the ‘crocodile
fat’ in his version when the court asked him why people
in a
rural, agricultural area would be interested in buying traditional
herbs from him when those herbs are probably grown in that
rural area
and not in the city, from where the accused comes.
[109]
The accused’s movements in and around
Greytown were also difficult to comprehend. He had no specific area
that he intended
to visit: indeed, on his own version, he had to ask
someone in Greytown where he should go. That resulted in him leaving
the town
of Greytown in a truck whose destination was not known to
him, on his own version.  The court wanted to know from him why
he had not simply alighted from the first truck before it arrived at
Greytown, rather than go to Greytown and then leave for the

outskirts. No satisfactory explanation was forthcoming from the
accused.
[110]
There is in any event, something strange
and unconvincing about selling door-to-door in an unknown rural area,
on foot. Why not
concentrate on a township where there are streets
and houses? Why choose a rural area where there may be an irregular
sprinkling
of homesteads over the countryside that may have great
distances between them? This is all the more unlikely when it is
acknowledged
that the accused was to move about on foot.
[111]
The accused was a witness who gave answers
to questions that he was not asked and would not answer questions
that he was asked.
He had to be cautioned about being classified as
an evasive witness because of his repeated attempts to avoid
providing answers
to pointed questions put to him.
[112]
He was also a witness that advanced
propositions through Mr Tengwa that were put as facts, but which
clearly were not. Examples
of such instances have already been
mentioned: he was only identified by one witness at the identity
parade because he saw her
face-to-face, meaning that he did not see
the second witness and could not therefore possibly have known
whether she had identified
him; and that he had only been taken to
Kranskop Magistrate’s Court for the first time on 24 February
2020.
[113]
I
mentioned earlier that this case is about the identity of one the
gang members. That is so. But, in reality, it is rendered much
more
simple by the fact that the accused admits that on the afternoon of
14 December 2020, he wore clothing identical to a man
that appeared
in video footage recorded in the petrol station at Kranskop. There is
no dispute about what that robber wore, for
it is evident from the
video footage. And there is no dispute about what the accused wore.
He has admitted that. In making that
admission, he contradicted the
version put by Mr Tengwa to Ms Shinga when it was specifically denied
that he had worn a red hat.
The accused attempted to dispute the
evidence of Cst Mazibuko and insisted that he had continued to wear a
red hat at the time
of his arrest and had not reversed it so that it
now appeared as blue. The accused’s attempts to generate some
disputes over
what he wore were contrived and were not put to the
State witnesses and were only aired when he testified. There were
many instances
where new facts were introduced by the accused that
had never been put to the State witnesses.
[17]
[114]
But I digress. To revert to the issue, what
I need to determine is whether the man shown in the video footage
wearing a red bucket
hat, white vest, black or navy body warmer and
khaki trousers is the accused who also wore a red bucket hat, white
vest, black
or navy body warmer and khaki trousers.
[115]
In seeking the answer to this issue, the
probabilities must be considered. The first is how probable is it
that two different men,
both sporting beards with prominent jawbones,
would be identically dressed in the small community of Greytown on
the same day at
approximately the same time of day? In my view it is
improbable. The next probability is how probable is it that a white
bakkie
that was positively involved in the robbery in Kranskop would
be found at the same remote rural area where the accused was found?

Again, the answer must be that it is improbable.
[116]
After carefully, and anxiously, evaluating
the evidence, I am satisfied that the accused is the man in the video
footage recorded
in the petrol station on 14 February 2020. I do not
attach great weight to the identification of the accused on the
identification
parade for the reasons previously mentioned. But I
accept the evidence of Cst Mazibuko that identifies the accused as
part of the
gang. Cst Mazibuko had the further advantage of seeing
the accused both at the time of the robbery and almost immediately
afterwards
when he arrested him.  The other witnesses did not
see the accused again on the day of the robbery and murder. I find
that
the accused wore the same clothing as the man depicted in the
video footage and that he has an identical, prominent jawline. I find

that he was part of the gang that struck the G4S armoured vehicle at
the petrol station. I also find that he is the man who cold
bloodedly
executed the deceased.
[117]
The gang clearly acted with a common
purpose in robbing the G4S armoured vehicle. This may be deduced from
the roles that the members
played as evidenced in the video footage.
They all appear to have been armed and the video footage shows that
they used their firearms
in a random and indiscriminate way, firing
wildly at members of the public. They must have foreseen that persons
may have been
killed by their violent conduct but proceeded,
nonetheless. They were indifferent to the fact that they were firing
on scholars.
That none were killed, but merely wounded, is due more
to providence than good planning.
[118]
I accordingly find the accused guilty on
counts one to five.
MOSSOP
J
APPEARANCES
Counsel
for the State:
Ms Z
Sokhela
Instructed
by:
Director
of Public Prosecutions
Pietermaritzburg
Counsel
for accused:
Mr M
Tengwa
Instructed
by:
Legal
Aid
Pietermaritzburg
Dates
of trial:
23,
24, 25, 26, 30, 31 October 2023, 1, 2, 3 November 2023
Date
of judgment:
2 and
3 November 2023
[1]
As will later become apparent, the identification parade was
actually held at Durban Central Police Station.
[2]
This
is confirmed in the video footage.
[3]
It
is the store at which Ms Mulder purchased the memory stick onto
which she saved the video footage requested by the SAPS.
[4]
The latter motor vehicle may be observed in some of the video
footage.
[5]
The issue was finally put to rest the next day when the original
charge sheet was produced. The person making the photocopy
previously handed in had not photocopied the rear of the first page
of the charge sheet. The appearance of the accused on 17 February

2020 was recorded thereon.
[6]
S v
Mthetwa
1972 (3) SA 766
(A) at 768A-­C.
[7]
S
v Xaba
1983
(3) SA 717
(A)
at 730B-C.
[8]
S
v Govender and others
2006
(1) SACR 322
(E)
at 326c-j.
[9]
S
v Mahlangu and another
[
2012]
ZAGPJHC 114.
[10]
S
v Bruiners en 'n ander
1998
(2) SACR 432
(SE)
at 437E-F;
S
v Mafaladiso en andere
2003
(1) SACR 583
(SCA)
at 593E.
[11]
S
v Mahlangu and another
,
supra.
[12]
S
v Mafaladiso en andere
supra.
[13]
S v
Bailey
2007 (2) SACR 1 (C) 44.
[14]
S v T
2005 (2) SACR 318
(E) para 16.
[15]
R
v Kola
1949 (1) PH H100 (A);
See
also
S
v Mohlanthe
2000
(2) SACR 530
(SCA)
and
Tanatu
v S
[2004]
JOL 13144
(E).
[16]
Dictionary.com:
https://www.dictionary.com/browse/herb.
[17]
Examples
of this include the allegation that he wore silver grey trousers and
not khaki trousers; the allegation that Cst Mazibuko
had showed the
accused photographs on his cellular telephone when arresting him;
and the allegation that the white bakkie had
not capsized but was
parked on the road.