S v Mogale and Others (CC76/2018; 10/2/11/1-L41/18) [2020] ZALMPPHC 70 (5 August 2020)

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[2020] ZALMPPHC 70
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S v Mogale and Others (CC76/2018; 10/2/11/1-L41/18) [2020] ZALMPPHC 70 (5 August 2020)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABL
E
:
NO
(2)
OF
I
NTEREST
TO
OTHER
J
UDGES
:
NO
(3)
REVISED
:
Y
ES
/
NO
CASE
NO: HGC: CC76/2018
DPP
REF NO: 10/2/11/1-L41/18
In
the matter between:
THE
STATE
And
MOGALE,
CHARLES

ACCUSED 1
NTHUTANG,
SEHLABE LOUIS

ACCUSED 2
APHANE,
BOITUMELO DANIEL

ACCUSED 3
JUDGMENT
MUDAU, J:
[1]
The 3 accused are charged jointly in an
indictment, which contains 11 counts. For the sake of brevity and
clarity, the charges may
be formulated and reproduced as follows:
robbery with aggravating circumstances (count 1); conspiracy to
commit robbery with aggravating
circumstances, in contravention of
section 18 of the Riotous Assemblies Act, 17 of 1956 (count 2); three
counts of attempted murder
(counts3-5); two counts of murder read
with the provisions of section 51 (1) of Act 105 of 1997 (counts 6
and 7); unlawful possession
of firearms, including a fully automatic
firearm, and unlawful possession of ammunition in contravention of
the Firearms Control
Act, 60 of 2000 (counts 8-10 ) and finally,
against accused 1 only, reckless or negligent driving in
contravention of section 63
read with other relevant provisions of
the National Road Traffic Act 93 of 1986 (count 11).
[2]
All the accused are legally represented.
They pleaded not guilty to the charges. Accused 1, with the exception
of accused 2 and
3, elected not to disclose the basis of his defence
and exercised his right to remain silent during the plea proceedings.
Accused
2's plea explanation was that of an
alibi
in respect of count 1. In respect of
the remaining charges, accused 2 denied the allegations. He explained
that on the date and
place as detailed in count 11, he hitchhiked a
lift from an unknown driver to Johannesburg.
[3]
Accused 3's plea explanation was that in
respect of counts one and two, he was in police custody and therefore
could not have committed
the alleged offences. As for the remaining
charges, on the day of the incident he was in the company of his
friend, Solly, the
deceased in count seven. He accompanied Solly to
collect money from Jappie, the deceased in count six. They had
travelled from
Mahwelereng Township to Mokopane town where they met
with Jappie at an Engine garage. Jappie was traveling in a Ford
Ranger fully
described in respect of count 11 together with two other
unknown men. After withdrawing cash from the garage ATM machine that
he
gave to Solly, Jappie offered them a lift back to Mahwelereng. On
the way, unknown men who later introduced themselves as the police

shot them.
[4]
It is proper to set out by way of
introduction to the evidence and issues raised in this matter, the
essential factual allegations
advanced by the prosecution in seeking
to establish its case against the accused. The indictment is a good
starting point. The
State alleges in the summary of substantial facts
that the victims in respect of count one were at gunpoint accosted by
two men
when they alighted out of their motor vehicle, a Ford Ranger.
After being ordered to the ground, they were robbed of the Ford
Ranger
including other personal belongings. It is common cause that
the Ford Ranger, whose registration numbers had in the meantime been

cloned, was used during the incident referred to in counts 2 to 11.
[5]
The state alleges that upon receiving
information pertaining to the allegations in count 2, the police
observed the area and surroundings.
After spotting the vehicle with
the accused inside at the targeted place, attempts to stop it failed.
It is also not in dispute
that the Ford Ranger was indeed a stolen
vehicle, that it had been stolen during the robbery incident on 21
January 2017. The driver,
accused 1 sped off with the police in
pursuit. The occupants of the stolen Ford Ranger started shooting at
the police who returned
fire. It was not in dispute that the two
persons who are the subject of the murder charges, died not far from
the scene of the
planned robbery on 1 April 2017 and that they died
because of gunshot wounds sustained in a shooting incident after the
high­
speed pursuit by the police. It was not in dispute that the
firearms and ammunition that relate to the relevant counts referred

to above were recovered on the scene of the crime. It was also not in
dispute, where the firearms were found on the scene.
[6]
During the course of the trial, each
accused made a number of formal admissions in terms of section 220 of
the Criminal Procedure
Act. The formal admissions ('exhibit A')
comprise a large number of aspects such as photographs that were
taken of at the scene
of the capital crimes, the key and sketch plan
of the scene, as well as the two deceased's identity and the
respective post-mortem
examination reports. The accused formally
admitted that the deceased in count 6, Tebogo Jacob Ngwaila, a male
person, died on 1
April 2017, the cause of death was determined to be
a gunshot wound to the chest. In his case, the post-mortem report
recorded
" an oval entrance
gunshot wound (0, 4x0, 3cm) with an eccentric abrasion ring (0, 1-0,
2) at
5
to
6 o'clock position. The wound is located on the left outer aspect of
the chest wall along the anterior axillary line,
25
cm away from the sternum and 1.29
m
above the heel. No burning/blackening
or tattooing around the wound".
The
accused formally admitted that the deceased in count 7, Lesiba Solly
Pale, a male person, died on 1 April 2017, the cause of
death was
also determined to be a gunshot wound to the chest. In the latter
instance, the post-mortem report records that the body
of the
deceased had "a
round entrance
gunshot wound (0, 4x0, 4cm) with eccentric abrasion ring (0, 1-0,3cm)
at 11 to 4 o'clock position. The wound
is
located on the left outer aspect of
the chest wall along the anterior axillary line, 22 cm away from the
sternum midline and 1.29
cm above the heel. No burning/blackening or
tattooing around the wound".
Other
formal admissions are recorded in Exhibit B and related in the main
to the firearms, spent cartridges and ammunition recovered
on the
scene.
[7]
The forensic evidence presented by the
prosecution consisted in the main of evidence relating to the crime
scene in De Klerk Road.
Two photograph albums, Exhibits, B and L were
submitted in evidence. These albums consisted of some 152 photographs
depicting the
crime scene, the Ford Ranger recovered on the scene,
the positions of the two deceased and photographs of firearms and
other evidential
materials such gloves recovered on the scene of the
crime as well as photographs of accused two and three who survived
the shooting.
[8]
It was not in dispute that the firearms
and ammunition that relate to the counts 8, 9 and 10 were recovered
on the scene of the
crime. It was also not in dispute, where the
firearms were found on the scene. The position of the deceased
persons was also admitted
and the forensic evidence relating to the
deceased persons formed the subject of section 220 submissions made
by the accused. It
is accordingly not necessary to set out the nature
of this forensic evidence and the particular evidential material
found on the
scene of the crime, in any detail. Where necessary this
will be dealt with in the evaluation and assessment of the evidence
presented
by the prosecution and that presented by the defence.
[9]
In respect of the firearms and
ammunition recovered at the scene, it was not disputed that a 5.56 X
45 mm calibre Vector model RS
fully automatic assault rifle of which
the serial number was erased, was recovered on the scene with rounds
of ammunition; one
9 mm parabellum caliber Norinco model 201C
semi-automatic pistol and one 9 mm parabellum caliber Arcus model
980A semi-automatic
pistol with rounds of ammunition were recovered
from the scene. The accused also admitted the content of an affidavit
tendered
in terms of section 212 of the Criminal Procedure Act by
Warrant Officer Goertzen attached to the Ballistics Section of the
Forensic
Science Laboratory as a Forensic Analyst. The effect of this
forensic report was that the firearms recovered on the scene were,

with the exception of the 9 mm Norinco semi­ automatic pistol
which had no firing pin, all in working condition and that they

functioned without any obvious defects.
[10]
Warrant Officer Goertzen has since immigrated to New Zealand. Colonel
Mkhabela, a ballistic expert
was made available by the state to
testify on behalf of the defence in place of Goertzen in respect of
the ballistic report. Mkhabela
later testified and confirmed that the
cartridge cases mentioned in 9.1, 9.2 and 9.3 were not fired in the
firearms mentioned in
3.38, 3.41 or 3.44 of the ballistic report,
these being the firearms confiscated from the scene of the incident.
He further explained
with reference to the gunpowder residue which
tested positive on Solly that, it could either be that he was in
possession of a
firearm and actively discharged the said arm or that
he was within a radius of 1 m from a firearm discharging the
ammunition .
[11]
The complainant in respect of count one,
Mr Mathume Geoffrey Matlala (Matlala) testified and confirmed that at
about 21h30 on 21
January 2017, he was dropping off his companion, Ms
Florah Mphahlele outside the gate of her residence when two gunmen
accosted
them. They were robbed of their personal belongings
including cell phones and cash as well as his motor vehicle, a double
cab Ford
Ranger with registration number DHW 515 L. He later
identified his vehicle albeit with different registration numbers
fitted on
1 April 2017 after having received a call from the police
at the scene of the shootout. Although his insurance company helped
to
settle the debt with the bank that helped him finance the purchase
of the motor vehicle, it was not in full as he had to top up
an extra
R185 000-00 in settlement of the arrears due. He could not describe
the robbers. Neither could he identify any of the
accused before
court as the robbers. The statement of Ms. Mphahlele (exhibit D) was
by agreement of the parties admitted in evidence
without oral
testimony.
[12]
Sergeant Robert Marokane, a member of
the South African Police Service, attached to the Provincial Tracking
Team, testified and
confirmed with regard to counts 2 11 that, on 1
April 2017 the police had received a tip off about a group of 5 men
traveling in
a Ford Ranger who intended to rob a cash in transit van
at Boxer Grocery Store, Mokopane situated alongside the N11 road. The
N11
is a national route in this country, which runs from the Botswana
border in the north at Groblersbrug, through Mokopane town pass

through several other towns to end at the N3 in the South, near
Ladysmith. The stretch of road in Mokopane, a dual carriageway
to
either direction has been renamed Nelson Mandela Drive.
[13]
Sgt Marokane testified that at about 9
AM he and his colleague, Bopape drove to the Boxer grocery store.
They were travelling in
an unmarked white BMW sedan car that was
however fitted with concealed police blue lights and a siren. They
found the white Ford
Ranger as described with registration number
[….] stationary next to the Boxer Store on Nelson Mandela
Drive. A quick check
on the database of registered motor vehicles
revealed that the Ford Ranger with registration number [….]
was in fact gold
in colour and belonged to a man with a registered
address in Leydenburg, which made them suspicious.
[14]
They called for backup. However, before
backup could arrive, the Ford Ranger drove off northwards along
Nelson Mandela Drive. Attempts
to stop the Ford Ranger by blue lights
and a siren were to no avail as it increased speed, drove through red
traffic lights and
on its incorrect side of the road with the police
in hot pursuit. The Ford Ranger eventually turned right into
Bezuidenhout St.
Where Bezuidenhout st joins De Klerk st, it turned
left. It was at that point that the occupant of the Ford Ranger
started firing
at their BMW. By then the police back up team, in
another unmarked white BMW had joined in the chase. There was an
exchange of
fire by the police also armed with R 5 rifles with the
occupants of the Ford Ranger.
[15]
After a while, the Ford Ranger reduced
speed and all five men who were inside the Ford Ranger jumped out
whilst it was still in
motion. Some of the men, in all three, were
armed. The man continued shooting at the police whilst scattered.
When they stopped
firing at the police those still standing were
ordered to lie on the ground. Others had already fallen to the
ground. The armed
men were approached with a view to remove the
firearms next to them for the place to be secured. Of the five men,
he knew three
from a previous encounter and that was the two deceased
as well as accused 3. Those armed were the two deceased Solly, with
the
R5 rifle and Jappy Ngwaila with a 9 mm semiautomatic pistol.
However, he could not remember who of the three accused, was armed

with the second pistol. He explained that accused 1 was the driver of
the Ford Ranger.
[16]
During cross-examination, Sgt Marokane
could not dispute that the R5 rifle on photograph 39 holds 35 live
ammunition and that six
rounds were fired from it. Neither could he
dispute that one shot was fired from the semiautomatic pistol on
photo 49. He also
could not dispute that the magazine of the firearm
depicted on photograph 95 and 96 holds a maximum of 15 rounds of
ammunition.
On that basis, counsel on behalf of accused 1 suggested
to him that on the probabilities five shots were fired, which he
could
not dispute if. It was further put by counsel on behalf of
accused1 that on her instructions, after the shooting there were
about
99 R5 empty cartridges found. Marokane responded and disputed
that most of the shots were fired from the police firearms.
[17]
As to the question whose lives were in
danger because of the shooting, he testified that it was members of
the police, the residents
in the area as well as the suspects.
Marokane denied that the police were the first to shoot at the Ford
Ranger. He also denied
that the reason why accused 1 , the driver of
the Ford Ranger wanted to get away was that the police were shooting
at them. He
maintained that there was a shootout between the police
and the occupants of the Ford Ranger.
[18]
It was his version that the rear back
window of the Ford Ranger was open with someone firing the RS rifle
through the open window.
He disputed the suggestion by counsel on
behalf of accused 1 that the Ford Ranger was never at any stage
stationary. He confirmed
however, that accused 1 was not in physical
possession of any firearm at the time of arrest. He explained that
accused 1 was not
in possession of a firearm was only established at
the point of his arrest. Marokane also disputed that accused 1 exited
the Ford
Ranger, lifted his hands and only then, and was shot. He
maintained however, that during the briefing earlier that morning by
the
team commander, Sgt Makela, they were told that the suspects
would be five in the Ford Ranger. On Marokane's version when the
suspects
exited the Ford Ranger they came out through different doors
which is what he referred to when he testified in chief that they
scattered, after which they headed towards the same direction across
the road where they all took cover behind a tree. At that point,
he
could no longer see them.
[19]
During cross-examination by counsel on
behalf of accused 2, Marokane was not in a position to confirm from
where the occupants of
the Ford Ranger picked each other up. However,
he disputed that accused 2 was hitchhiking and was on his way to
Gauteng when the
incident happened. Further, on his version, from the
point where he found the Ford Ranger stationary next to Boxer grocery
store,
he noticed that it had five occupants. He only established the
identity of those three he mentioned after the arrest.
[20]
He disputed a suggestion made by counsel
on behalf of accused 2 that where he found them at Boxer Grocery
Store it is on the main
road, the R101 that leads either to Polokwane
or to Gauteng in the South. This he adamantly disputed. At this
point, Marokane drew
an arrow on page 2 of the Google map provided,
exhibit F regarding this matter on the N11 road pointing northwards.
As to the reason,
why the Ford Ranger moved from where it was parked
next to the grocery store, he suspected that it must have been
because they
recognized the police BMW car in which he was in, since
the colour and the registration numbers had not changed from a
previous
encounter with three of the suspects. It was put to him by
counsel on behalf of accused 2 that, he was on his way to Gauteng,
after
a getting a lift at Engine Garage. Marokane explained that he
found it surprising that accused 2 occupied the front passenger seat

whereas the Ford Ranger on accused 2's version already had four
passengers inside.
[21]
As to the bullet holes on the right side
window of the Ford Ranger, he testified that the board police motor
vehicles had to take
defensive cover by moving to the right side of
the Ford Ranger to avoid exposing themselves to the line of fire of
the rifleman
on the rear left side of the Ford Ranger. After the
suspects jumped out of the slow-moving Ford Ranger, they too stopped
their
car and "engaged with them" whilst taking cover on
the right side of the police motor vehicle. It was put to him that

accused 2 ran towards the tree, which Marokane confirmed. However, he
disputed that accused 2 left the tree upon seeing one of
the deceased
ran towards the same tree. As to the dispute by accused 2 that he had
no knowledge of any firearms inside the Ford
Ranger, Marokane
disputed the suggestion. He reasoned that no one could hide an RS
rifle inside the Ford Ranger, as it is a big
firearm.
[22]
As to the questions by counsel on behalf
of accused 3, he maintained that the shooting started at the corner
of Bezuidenhout and
De Klerk street. It is common cause that there is
no forensic evidence that covered the corner of Bezuidenhout and De
Klerk street.
He disputed the suggestion that accused 3 immediately
laid on the ground. On his version, accused 3 was arrested when he
tried
to flee from the scene. He also disputed that accused 3 was
neither at Boxer grocery store nor hid behind the tree as put by
counsel
on behalf of accused 3.
[23]
The police Tracking Team leader, Sgt
Makola testified and confirmed that on 1 April 2017 he received
information about planned cash
in transit robbery next to the Boxer
grocery store, Mokopane town as well as a description of the motor
vehicle to be used for
that purpose. He circulated the registration
number of the Ford Ranger on the SAPS circulation system and
established that it was
golden in colour, registered under the name E
P Blaaw, at a given address in Lydenburg, Mpumalanga. He briefed the
team and gave
directions to prevent the planned robbery. Two unmarked
police BMWs were dispatched in that regard. He was in one of the two
BMWs
and his driver was Rachidi. As they had taken different
positions in town, he received a message through the police radio
frequency
from Sgt.Marokane that the motor vehicle fitting the given
description was spotted at Boxer.
[24]
As the Ford Ranger had tinted windows,
Marokane told him that he was unable to ascertain the number of the
occupants. As he and
his colleague drove to the direction that was
given, he could hear the wailing sound of a siren from a distance
even before he
could see the second police BMW. Marokane then radioed
and informed them that the Ford Ranger was fleeing from the scene. As
he
and his colleague were about to enter Nelson Mandela Drive, he saw
the white Ford Ranger pursued by their other BMW in which Marokane

was, with its blue lights on. He too switched the blue lights of the
motor vehicle on and gave chase. He noticed the Ford Ranger
skip the
next robots that were on red at an intersection, followed by the next
set of red robots at another intersection and driving
whilst facing
oncoming traffic.
[25]
From Nelson Mandela drive, the Ford
Ranger turned right on a street he could not recall at that stage
but, which joins De Klerk
Street still traveling at high speed. As it
turned into De Klerk Street, he noticed from a distance of about 150
m that the rear
left window was rolled down, and through that window
a barrel of a rifle that was pointed at the direction the police cars
were
approaching from followed by a gunshot. There was a little bit
of smoke that he noticed from the rifle. In response, he took out
his
R5 rifle and shot towards the Ford Ranger.
[26]
He confirmed that the Ford Ranger
slowdown and that the occupants alighted whilst it was still in
motion. He confirmed that the
driver was accused 1. As they exited
the Ford Ranger, he noticed that the R5 rifle was in the possession
of Solly, and that the
pistols were in the possession of Jappie and
accused 2 , respectively . They all took cover behind a trunk of the
tree in a 'stuck-up
position,' meaning one after the other, as
commonly described in police parlance. He confirmed that the police
stopped their motor
vehicles and shot in the direction of the tree.
The suspects started to run from the tree in different directions
albeit not far
as they went down as a means of surrendering. From the
five suspects, he already knew three of them; and that was the two
deceased
as well as accused 3 from a previous undisclosed encounter.
[27]
Accused 1, who was injured, did not give
an explanation about the ownership of the Ford Ranger. As he was
found in control of the
Ford Ranger that was reportedly stolen,
accused 1 was informed that he was under arrest for possession of the
stolen Ford Ranger
and informed of his rights regarding arrest before
he was taken to hospital by the emergency personnel. In addition,
after cordoning
off the scene, forensic experts were summoned. The
official draughtsman and photographer, Captain Kganare later arrived.
Accused
3 who had sustained a scratch on his forehead from an
apparent fall called him from the back of the police van where he was
temporarily
detained and made certain statements to him which he
declined to disclose as he was not a commissioned officer, but
referred him
to his seniors, instead. He explained that accused 3
never reported to him that he accompanied his friend Solly to fetch
money
from the deceased, Jappie after which they were offered a lift.
[28]
During cross-examination, Makela
confirmed that each of the 4-team members was issued with an R5
rifle. Although he did not personally
see the Ford Ranger parked next
to the Boxer grocery store, Marokane called him and reported that he
found it parked there. As
to a question where he caught up with the
first BMW, it was at the intersection of Nelson Mandela and Pretorius
streets. The siren
of his BMW was switched on at that stage, as the
traffic lights were red.
[29]
He confirmed that he saw the rear left
window of the Ford Ranger with the barrel of the rifle protruding
whilst giving chase on
Bezuidenhout Street after due regard to
exhibit F. It was at that point that he had the sound of a shot from
the rifle, as the
Ford Ranger turned left into De Klerk Street. He
could not recall how many shots he fired whilst in his car, but
confirmed that
he fired other shots after exiting his car. He was not
in a position to give the details as to who from the side of the
suspects
were shooting because of the fact that their lives were
exposed and had to act in self-defence. As for point C where the
deceased
Ngwaila perished, he explained that point C was in line with
the tree where the suspects were. As to the question why there were

no obvious 9 mm spent cartridges suggesting that shots were not fired
from the pistols, he countered this by pointing out a jammed
9 mm
pistol next to the deceased in point C. He confirmed that after the
incident they sprayed the area to two indicate where the
firearms
were laid for convenience whilst waiting for the forensic team. He
disputed that accused 1 was shot with his hands up
in the air after
exiting the Ford Ranger until he fell to the ground as suggested.
[30]
He also testified that the Engine garage
with a Wimpy restaurant is situated on the R101. As for the usual
hiking spot for those
getting out of town to Gauteng, it is the
Caltex garage, which is situated last along the R101 South next to a
KFC restaurant.
As for accused 2 he occupied the front passenger
seat. He admitted that from his written statement made shortly after
the incident,
no reference was made about the suspects standing in a
stuck-up position. Neither was any reference made about accused 2 in
possession
of a pistol. It was put to him that accused 2 did not know
any of the others in the Ford Ranger. Makola disputed this assertion.

He testified that accused 2 knew the deceased Ngwaila, but declined
to give details because he would have introduced character
evidence
against accused 2.
As
to the suggestion that accused two was unarmed, he maintained that
accused 2 was armed with a pistol when he fell, which Bopape
took
away. He conceded to his credit, that the two deceased died by
gunshots that came from the side of the police team. As to
the
suggestion that no robbery took place and that the Ford Ranger was at
all times stationary, he responded that the police went
to the scene
to foil the planned robbery and the loss of innocent lives. As to the
suggestion that accused 3 accompanied Solly
to collect money from the
deceased, he testified that accused 3 called him aside
at
the  scene
and
implicated
himsel
f
,
which information required a commissioned officer to record.
[31]
Warrant Officer (as he then was) Kgare,
whose role was in relation to the crime scene analysis and was in
charge of the collection
of evidentiary material and compilation of
the photo album, exhibit B referred to above from the crime scene in
De Klerk Road by
virtue of his position as an official draughtsman
and photographer. He also examined the Ford Ranger and objects such
as firearms
and spent cartridges found on the scene. It is
appropriate to record the key findings of his crime scene analysis as
recorded in
the photograph album (Exhibit B and L) that the witness
prepared. He arrived at the scene at 11:00 on the morning of 1 April
2017.
The scene of the events of 1 April extended over a considerable
area along De Klerk Street and included some residential premises

situated alongside the road but excluded Cnr Bezuidenhout Street,
which was not brought to his attention.
[32]
An R5 automatic rifle with an
obliterated serial number and a loaded magazine was found at point E1
and a 9 mm pistol that point
E2 next to the deceased marked B (Solly
Phale) as depicted on photo 39-58. The second deceased, (Ngwaila) was
found at a point
marked C next to the trunk of a huge tree. This is
not far from point E3 on the verge of the road outside a residential
property
next to a municipal water meter, a distance of 1.4 m from
where the third 9 mm pistol with ammunition , was found as depicted
on
photo 81- 96. The two deceased were found at distance of 6.3 m
apart. Also recovered from the scene was a pair of Black Hand gloves

at point D6 and D7 as well as caps and a hat at point D2, D3, D9 and
D5 respectively. Sandals and Cell phones were also picked
up from the
scene D1, D4, D8 and D10 respectively.
[33]
The Ford Ranger was found at the point
marked F depicted on photo 123-132 approximately 50 m from the two
deceased .The window in
the rear right passenger side door was
damaged and there were bullet holes on that side of the vehicle.
Thirty-seven empty rifle
cartridges were picked up from various
points. These were sent for ballistic examination together with the
three firearms confiscated
from the scene. Significantly, gunshot
residue evidence were collected from all the suspects except accused
one who at that stage
had been taken to hospital. Except for the
deceased at point B, Phale whose results were positive, the rest
turned out negative.
THE ADMISSIBILITY OF THE
STATEMENT MADE BY ACCUSED NO. 3
[34]
The following day accused 3 made a
statement to Col Sivhagi, which the prosecution tendered in evidence.
It is trite that the state
bears the onus to prove that a statement
made by an accused person containing admissions and or amounting to a
confession was made
freely and voluntarily by the accused whilst he
was in his sound and sober senses and that the accused was not unduly
influenced
to make the adverse statement. The accused objected to the
admissibility of the statement and, following a trial within a trial

to determine the admissibility, I ruled it to be admissible .
[35]
In challenging the admissibility of the
statement, the accused alleged that he had been assaulted and
threatened by three unknown
police officers following his arrest and
that the statement was accordingly, not freely and voluntarily made.
[36]
In the trial within a trial, the
prosecution presented the evidence of Col Sivhagi. Sivhagi explained
that the accused was brought
to an office where he was by a member of
the SAPS from the community service center. He and accused 3 were the
only two inside
the office. After inviting the accused to be seated
and the necessary introductions made, he went through the notice of
rights
in detail and explained it to the accused, which he personally
interpreted in Northern Sotho, a language he is fully conversant
with
for the accused.
[37]
The preliminary interview form records
that he warned the accused that he was not obliged to make any
statement and informed him
of his rights to silence and to obtain
legal representation. He was also told that if he wished to make any
complaint about assaults
or ill treatment that Sivhagi would arrange
appropriate protection for him in that regard. He noted that the
accused had a bruise
on his forehead and a red eye that the accused
attributed to having been sustained at the time he took cover on the
ground to avoid
the shooting. The accused also had black marks on his
right wrist attributed to handcuffs. He observed that the accused had
no
other visible injuries other than old scars on the shoulders.
[39]     He
afforded the accused an opportunity for a hospital visit but, which
the accused declined. Once the
rights had been explained to the
accused he was afforded an opportunity to sign an acknowledgement,
which he did. The accused was
also issued with an SAP 14A no R4522623
form detailing his constitutional rights, which he signed for in
acknowledgment. The accused
was afforded an opportunity to sign and
acknowledge the statement, which he did. According to Sivhagi, it was
his impression that
the accused was relaxed and at his ease and that,
he freely indicated his desire to make a statement concerning his
involvement
in the offences.
[40]     The
accused's version of what transpired following his arrest with regard
to the taking of the statement
is in stark contrast to the version
set out by the prosecution witness above. The accused did not lead
the evidence of any other
witnesses. As indicated, the onus is upon
the state to prove that the statement was freely and voluntarily made
and that it was
not made as a result of any undue influence brought
to bear upon the accused.
[41]
In cross-examination, the accused stated
that his constitutional rights were never explained to him and that
the statement made
by him to Sivhagi was based on what he had been
told to say to him by three other officers who tortured him. He
stated that the
information contained in the statement did not come
from him, as Sivhagi kept writing, threatening that him that he will
not get
bail unless he signed. According to the accused, the
statement made to Sivhagi was false.
[42]
When it was his turn to testify in the
trial within a trial, it was the accused's version that Sivhagi took
out a cell phone and
showed him a video of his friend, Solly. He told
him not to waste time but to tell what happened at Shoprite, Louis
Trichardt before
he left leaving him with three other unknown
officers in a separate office who tortured him by placing a plastic
bag over his head
to stop him from breathing. He agreed to comply
with what they ordered him to do. In that event, the three men
ordered him to go
to Col Sivhagi and to tell him what happened in
Louis Trichardt. Since he knew nothing about the incidents, the
officers told him
what to say. A uniformed officer took him upstairs
where Col Sivhagi was and left him there. Of his own accord Sivhagi,
started
writing the contents of which he did not know. He was asked
however whether he knew the two deceased, which he confirmed. Sivhagi

of his own accord continued to write the statement.
[43]
Sivhagi asked him if he knew one
Malakalaka, which he confirmed since they were arrested together in
January. He was asked to sign
which he refused before he could speak
to his lawyer. Col Sivhagi continued writing many pages without
saying anything. Sivhagi
threatened to call the three officers
downstairs; out of fear, he then signed the statement. He disputed
that he gave the officer
his personal details and explained that the
investigating officer regarding this case was the investigating
officer in his other
case. It was accused 3's version that none of
his constitutional rights were explained to him. Sivhagi told him
that he had no
rights, as he was one of the troublesome people in the
Province.
[44]
Accused 3 maintained that all that
Sivhagi asked him were his names and surnames, as for the rest of the
statement he was never
asked. After signing the statement, it was
then that Sivhagi promised to grant him bail contrary to an earlier
version that that
he was asked to make this statement in return for
being granted bail. As for the black mark on his wrist, he explained
that the
handcuffs that were tight on his wrists caused it. The
accused's version of what gave rise to the statement is inherently
improbable.
It was never put during cross-examination of Col Sivhagi
that he mentioned to accused 3 that he was one of the troublesome
people
in the province. He also conceded during his cross-examination
that it was never put to Col Sivhagi that he first met him with three

others in a separate office where he was tortured before the
statement was taken.
[45]
Significantly, on his version, he did
not ask the three officers for information he was supposed to relate
to Col Sivhagi. Neither
did he make any statement to Col Sivhagi
which contradicts the version placed on record to the effect that he
was directed what
to say in the statement. Accused 3, also conceded
that it was never put to Sivhagi that from the office below a
uniformed officer,
took him to an office where he was upstairs. He
further conceded that it was never put to Sivhagi whether he knew
Solly. He also
conceded that it was never put to Sivhagi that he
threatened to call the three officers when he allegedly refused to
sign the statement.
He was also constrained to concede that it was
never put to Sivhagi during cross-examination that he had no right to
call his legal
representative.
[46]
As to the allegations that his rights
when not explained to him, he was referred to exhibit J page 2
paragraphs 3 and 4 were rights
are detailed with his signature on the
side. In addition, there was an SAP 14 a notice issued to him, which
he acknowledged. It
was put to him by counsel on behalf of the state
that, the submission would be he made the statement freely and
voluntarily, he
responded thus:
"what
he wrote is what I was told to go and tell him" ,
in
contradiction to an earlier version that he made no statement to
Sivhagi.
[47]
When all of these facts are considered
and when regard is had to the probabilities I am satisfied that the
accused's version of
what transpired between his arrest and when he
made the statement to Col Sivhagi cannot reasonably possibly be true.
The statement
is detailed. Indeed, I hold that his version is,
manifestly false. In contrast, Col Sivhagi was an outstanding witness
whose version
was not materially challenged in any meaningful way.
Accordingly, I hold that Sivhagi's version is in all material
respects credible
and trustworthy as compared to that of accused 3. I
am satisfied therefore, that the state discharged the onus of proving
beyond
any reasonable doubt that the statement was made by the
accused whilst he was in his sound and sober senses; that he was not
subject
to any undue influence and that it was freely and voluntarily
made. It was for this reasons that I admitted the statement in
evidence.
[48]
Testifying in his defence, the first accused (Mogale) gave evidence
and denied all the charges. He
denied that he was involved in the
robbery of the Ford Ranger on 21 January 2017. He specifically also
denied being a party to
the conspiracy to rob the cash in transit
vehicle on 1 April 2017. On that day, he was test-driving his friend,
Jappie's motor
vehicle, the Ford Ranger whilst they were on the way
to Mahwelereng together with his co-accused and the two deceased.
Moreover,
he was driving the car because he liked it. He was driving
normally on the outskirts of town along De Klerk Street. Suddenly, he

had gunshots on the side of his door. As a result, he accelerated to
avoid the shooting. However, he was shot on his arm and buttock.
He
jumped out of the Ford Ranger whilst it was still in motion as he
thought those shooting at them were robbers. Once outside
on the
ground he raised his hands to show that he was not armed, but was
shot just above his ankle. As a result, he fell to the
ground where
he remained without realizing what was going on. Having fallen
unconscious, he regained his conscience whilst in hospital
where he
remained, for approximately six weeks. He specifically denied the
allegation by the state that any shots were fired from
the Ford
Ranger.
[49]
During cross-examination by counsel on behalf of accused 2, he
testified that accused 2 was unknown
to him and that when they left
the garage; they found accused 2 hiking for a lift. He stopped for
accused 2 after Jappie told him
to do so. Accused 2 said he was going
to Gauteng. However, Jappie told accused 2 that he first had to drop
off
people at Mahwelereng, which accused 2 had no problems
with. The shooting happened hardly five minutes thereafter. On his
version,
whilst inside the Ford Ranger there were no discussions
about robbing a cash in transit van. He denied that they took a
stuck-up
position behind a tree. On his version, accused 2 never
stood behind the two deceased and himself in a stuck-up position. He
testified
that accused 2 after alighting, laid on the ground on the
side of the road. When he and Solly jumped out of the Ford Ranger
both
of them had already been shot whilst inside the vehicle and were
bleeding. He was not in a position to indicate at what point Jappie

was shot during the incident.
[50]     As to
questions by counsel on behalf of accused 3, he testified that when
he boarded the Ford Ranger
at the Engine garage, it was only Jappie
inside the motor vehicle. However when they left, there were already
five. He denied that
they went to Boxer Store or stopped anywhere
near it. After accused 3 jumped out, he did not see where accused 3
was, but they
were all on the ground.
[51]
During cross-examination by the state, he could not explain why the
version of how he came to be in
control or possession of the Ford
Ranger was never put to the owner of the Ford Ranger. As to why it
was never put to Sgt. Marokane
that the Ford Ranger never stopped at
Boxer grocery store he had no explanation to give. He confirmed
hearing the evidence by the
two police officers that from Boxer
Grocery Store the Ford Ranger continued along Nelson Mandela Drive
and that if he wanted to
continue driving to Mahwelereng he could
easily have proceeded straight until he joined Dudu Madisha Drive,
which led to Mahwelereng.
He responded that he was under no such
obligation. From the Engine garage, he turned right on Thabo Mbeki
commonly known as the
R 101 and left into de Klerk Street.
[52]     He
disputed that he ever drove along the N11 or Nelson Mandela drive and
turned right into Bezuidenhout
Street as depicted on exhibit F2 or
that he ever crossed any robot-controlled intersections. As to why
the state witnesses were
not challenged in that regard, he could not
explain. Neither could he explain why the officers were not
challenged that as the
Ford Ranger turned left into de Klerk Street,
they saw the barrel of the gun pointed towards them. As to the
version by both officers
that he was speeding, he attributed this to
a lie. Neither was he in a position to explain why accused 3
implicated all the occupants
of the Ford Ranger in his confession. He
could not explain why it was put to Sgt. Makela that he was only shot
once he had jumped
out of the Ford Ranger whereas that was not the
case on his version.
[53]
Accused 1 had no explanation to give as to how the three firearms
seized in the aftermath came to the
scene. Neither could he explain
why the gunpowder residue tests came out positive regarding the
deceased, Solly. He confirmed that
he owns a Golf VW 6 GTI, albeit
bought in 2020 on his version. He went to the scene where he met the
others in a Nissan bakkie
1400. It was his impression that the
accused 2 did not know the occupants in the Ford Ranger but was
uncertain. On accused 1's
version, he started hearing gunshots at the
point marked X1 on exhibit F2 after which he was shot at the point
marked X2 contrary
to the version put to the state witnesses on
behalf of accused 2. After accused 2 was picked up, on accused 1's
version he did
not stop the Ford Ranger anywhere. As to the question,
whether accused 2 two ran to the tree, he disputed this. On his
version,
the tree was far at a distance of about 8 to 10 m. Further,
on his version, the only person close to the tree was the deceased,

Jappie.
[54]
During examination by this court, he
testified he regarding the Ford Ranger that, Jappie, his friend
informed him that he bought
the vehicle in December 2017, which he
later changed to 2016 from a dealership in Pretoria through a finance
scheme. He first saw
the vehicle in February 2017. He confirmed that
Nelson Mandela Dr. is a dual carriage Rd, with parking on either side
of the road.
He further confirmed that 1 April 2017 being month end,
the town was busy with traffic and people going about their business.
Traffic
was congested as well on Nelson Mandela Dr., which explains
why he took De Klerk St. As to whether the Ford Ranger drove from the

Engine Garage before accused 2 boarded, he testified that they,
meaning accused 2, 3 and the deceased Solly, boarded at the same

time. As to a question whether he would have noticed the R5 rifle
inside the Ford Ranger had it been there, which he confirmed.
As to
where the rifle came from it is his evidence that he saw it when they
were on the ground with the police holding it. Howeve,r
he could not
confirm that the R5 rifle did not come from the Ford Ranger.
[55]
Accused 2, Nthuteng testified in his
defence and denied the allegations of the robbery in relation to the
incident of 21 January
2017. He also denied any involvement regarding
the events that occurred on 1 April 2017. He confirmed accused1's
evidence that
on 1 April 2017 at about 8:15 am he obtained a lift
from the occupants of the Ford Ranger and next to the Engine Garage
from Mokopane
on the old N1 South road to Alexandra, Gauteng where he
lived. This was after a request he made to the front seat passenger
he
came to know later as, Jappie. He had just spent the night with
his girlfriend at a local BIB. None of the occupants were known
to
him. He had with him a bag as depicted on photo 31 that contained
toiletries, cell phone and a wallet.
[56]
Accused 2 confirmed that he had no
problems upon being informed that there were people inside the Ford
Ranger who had to be dropped
off first at the Township before
proceeding to Gauteng. He took the front passenger seat. On his
version, from the point where
he was picked up, the motor vehicle
turned to the right, and again took another right before taking
another Street to the left.
[57]
After the Ford Ranger had stopped for a
little while, he further confirmed that one of them said they :would
buy food along the
way. It was traveling on a street that it turned
left into that he became aware of cars that were following them. He
confirmed
that the driver accused 1 increased speed after the sound
of gunshots from the two BMW cars following them. The Ford Ranger
slowed
down. That is when he opened the door and fell on the ground
where he remained lying. He also noticed accused 1 getting out of the

motor vehicle with his hands up.
[58]
He noticed Jappie who had been seated
directly behind him opened the motor vehicle door and ran to the
tree. As he remained on the
ground, he saw Sgt. Makola who at that
stage was next to him, shoot Jappie. However, he was not in a
position to say where on his
body, Jappie had been shot. He remained
lying and pretended as if he too had been shot. The sound of firearms
eventually stopped.
He only stood up from his position where he was
lying on the ground when there were a lot of police officers at the
scene verifying
who had died and those still alive among them.
[59]
He denied that he was in possession of a
pistol as the police testified. As for the firearms found at the
scene, he saw those lying
on the tarred road for the first time when
he arose from the ground where he had been lying. He disputed that
there were any shots
fired at the police BMW cars from the Ford
Ranger. On his version, he knew nothing about the conspiracy related
charges or that
he acted in furtherance of a common purpose. Further
on his version, Solly did not discharge a firearm. Contrary to the
version
by accused 1 that the Ford Ranger never stopped after he was
picked up, he maintained that it did, albeit not for a long time.
However, the Ford Ranger stopped at the stop sign.
[60]
On accused 2's version, he never heard
the police siren or saw the blue lights and that, Sgt. Makola lied
during his testimony in
that regard. He disputed that the Ford Ranger
drove through red traffic lights. That said, he remember that where
the Ford Ranger
made the last turn to the right, there was a set of
robots. To facilitate an understanding of his testimony in that
regard he made
markings on F2 with a blue pen indicating that the
Ford Ranger travelled first on Thabo Mbeki Drive (R101) southbound
and turned
right at the next intersection along Nelson Mandela Dr.,
until it turned right on Bezuidenhout Street and thereafter left on
De
Klerk Street.
[61]
Accused 2 denied that after getting out
of the Ford Ranger he maintained a stuck-up position behind the tree
with his companions.
He maintained that he was unaware of the
presence of any firearms in the Ford Ranger or that he possessed a
firearm as depicted
on exhibit B photo 50 as well as the ammunition
therein.
[62]
During cross-examination on behalf of
accused 1, he confirmed that he was not familiar with the area of
Mokopane and that it was
possible that he made mistakes in that
regard during his testimony. Further, during cross­ examination
by the state he was
invited to indicate where the Ford Ranger had
come to a stop as testified in chief. He indicated that it stopped at
the robots
where it took the second right before its last turn to the
left. Regarding J1, the confession by accused three, he could not
explain
why reference was made to him and the role he allegedly
played. The reason why he took the front passenger seat was because
of
his leg problem. He could not give an explanation why it was not
put to Sgt. Marokane in that regard during cross­ examination

when the latter expressed a view that it was highly unlikely for a
hitchhiker to take a front seat in a car with four occupants,
already
inside.
[63]
He confirmed that he saw the two police
cars as their motor vehicle turned left at corner Bezuidenhout and De
Klerk Streets. Contrary
to his testimony, in J1 it is stated that the
Ford Ranger was traveling at high speed before the gunshots were
heard. He had no
explanation to give in that regard. Contrary to what
was put to Sgt. Marokane during cross-examination on behalf of
accused 1 that
the latter was shot with his hands raised up after
getting out of the motor vehicle, he explained that accused1 was shot
in the
Ford Ranger before getting out. Contrary to what was put to
the state witnesses that he (accused 2) ran to the tree after jumping

out, it was his version that he fell to the ground where he remained
lying down since he cannot run because of knee problems and
had
undergone knee replacement surgery.
[64]
Counsel for the state read the back the
relevant interaction between counsel for accused 2 and the State
witness to the effect that
he ran towards the tree. Accused 2
responded that he walked fast after alighting and laid on the ground.
He attributed that to
a possible misunderstanding between them. When
he was pressed on this aspect that his counsel often approached him
for further
instructions he was constrained to concede that he did
not correct her in that regard. Regarding the alleged shooting of
Jappie
by Makola, he conceded that it was never taken up with the
latter during cross-examination. As to the allegation that he saw the

firearms at the scene only at the stage when he was taken to the
police van, he was constrained to concede that the police officers

were never questioned in that regard.
[65]
As regards his version that no one in
the Ford Ranger shot at the police motor vehicles, he had no version
to give why Solly tested
positive for gunpowder residue. In his
response to examination by this court that I took judicial notice of
the fact that Nelson
Mandela Dr. has several robot-controlled
intersections, littered with many restaurants such as Chicken Licken
and KFC for example,
he could not deny this aspect. As to why he did
not see the other robots was because he was a passenger. As for the
firearms that
are the subject matter of this trial, he could not
explain where they came from at the scene. On his version, Jappie was
shot,
from what he could see only once, unarmed whilst running
towards the tree.
[66]
Accused 3, Aphane also testified and
disputed all the charges and the allegations pertaining to the said
charges. As for the allegations
regarding the 21 January 2017, he was
home the entire day. Regarding the events of 1 April 2017, he
accompanied his friend, Solly.
They travelled by Taxi to Mokopane
town where they met Jappie at the Engine Garage. After Jappie gave
Solly the money, Jappie offered
them a lift back to the Mahwelereng
Township where they came from. Inside the Ford Ranger was accused 1
who was the driver. Jappie
took the front passenger seat whereas he
and Solly took the rear seat.
[67]
He confirmed that as the whereabouts to
enter the R101 southbound, that is when they picked up accused 2 who
asked for a lift to
Gauteng. He confirmed that accused 2 was given a
lift subject to them being dropped off at the Township and that
accused two had
no problem with that. He confirmed that accused 2
complained of a knee problem and that Jappie gave up his front seat
for accused
2. The Ford Ranger made a U-turn and took the R101
northbound lane, and at the robots turned left into De Klerk St.
[68]
As they drove along after passing the
next intersection that is the stage when he heard the gunshots at
which event, accused 1 increased
the speed. Realizing that the
gunshots were aimed at their motor vehicle, he took a ducking
position by keeping his head down.
The Ford Ranger reduced speed, the
occupants alighted and he followed suit. He remained on the ground
with his face covered until,
as he put it, "awakened". That
is when he was told he was under arrest. He was taken to see the body
of his deceased
friend, Solly and thereafter taken to a police van.
In the meantime, the shirt he had on was removed and he remained with
his vest
and thereafter they went to the police station.
[69]
The next day, on Sunday 2 April 2017,
the police fetched him from the cells. He was taken to an office
where he found four police
officers. He was questioned about the Ford
Ranger that allegedly was at another crime scene in Louis Trichardt.
He was tortured
in that they covered his head with a plastic bag. The
police officer who took down the statement, exhibit J1 left the room,
leaving
him with the remaining three. He was questioned regarding
what he knew about the robbery at Boxer Grocery Store, which he
denied.
The torture continued with the use of the plastic bag in the
manner described above. They told him that Jappie was armed with the

R5 rifle, accused 2 with a pistol and Solly with another pistol,
which he disputed.
[70]
The assault on him continued in the
manner described above in which event, he agreed to do anything they
wanted him to do. They
told him to go Sivhagi and tell him that: he
went to town with Solly and accused 1, were they met with accused 2
and Jappie for
a planned robbery at Boxer Grocery Store. When he
protested his innocence in that regard, they once more threatened to
assault
him. The three officers committed to grant him bail if he
conveyed to Sivhagi what they told him to say. He eventually
relented.
He was taken to an office upstairs where Sivhagi was. After
a brief introduction and after being offered a seat, Sivhagi asked
him whether the other officers told him what he was supposed to say
to him, which he confirmed.
[71]
He asked Sivhagi for an opportunity to
call his lawyer, which was denied. His request to be taken to the
hospital because of the
bruise on his forehead was refused. Sivhagi
told him to stop wasting time failing which he will call the other
officers. Out of
fear that he might be tortured further, he repeated
to Sivhagi a statement that, he had been told to repeat as detailed
in exhibit
J1. However, when he refused to sign off the statement,
Sivhagi threatened to call the other officers. He relented and signed
the
statement. Once done, Sivhagi called another police officer to
take him away. The next day, he was taken to the magistrate court

where he explained what happened to his legal representative.
[72]
He maintained that accused 1 and 2 were
unknown to him and that he only knew Jappie by name as they had never
met before. He maintained
that the Ford Ranger never went anywhere
near Boxer store nor drove along Nelson Mandela Dr., and thereafter
turned into Bezuidenhout
Street as alleged by the state witnesses. He
denied that there were firearms in the Ford Ranger, and that if the
rifle was in the
Ford Ranger he would have seen it as it is
impossible to hide an R5 in that motor vehicle.
[73]
After jumping out of the Ford Ranger, he
remained on the ground; face down covering his face whilst the
shooting continued for approximately
2 to 3 minutes until he was
placed under arrest. He denied that he was party to any conspiracy to
rob or that the police retaliated
upon being shot at. He explained
that he was not in possession of any firearm.
[74]
During cross-examination by the state,
accused 3 drew arrows using a black pen on exhibit F2 to indicate the
route travelled by
the Ford Ranger on 1 April 2017, which is
inconsistent with the version by accused 1 and 2. It was put to him
that the version
to the effect that he was home the entire day on 21
January 2017 is inconsistent with his plea explanation to the effect
that he
was in fact in custody for another matter. His reply was that
he was not sure about the dates. As for his allegation that the Ford

Ranger made a U-turn that morning, he conceded that this was
mentioned for the first time. Regarding the shootout, he conceded

that he could not explain why Solly tested positive for gunpowder
residue. He also conceded that the court heard for the first
time and
through his testimony that Solly was going to buy grocery at Choppies
on the morning of their arrest, as the allegation
was someone asked
to buy food along the way.
[75]
During examination by the court, he was
not in a position to clarify the order in which the occupants of the
Ford Ranger jumped
out. Neither could he indicate where his
companions where since he was on his version, on the ground with his
face down. That concluded
the oral testimony. None of the accused
called a defence witness other than Col Mkhabela whose evidence it
has already been dealt
with above.
[76]
It is trite that an accused person bears
no onus whatsoever and he or she is accordingly not required to prove
any aspect of his
or her defence or to persuade the trial court of
anything.
[1]
An accused person is entitled to be acquitted if, upon an assessment
of the evidence considered as a whole, there is a reasonable

possibility that the version put up in defence to a charge may be
true.
[77]
It is trite that in evaluating the
evidence and in coming to a decision as to whether the state has
proved beyond a reasonable doubt
that the accused is guilty of an
offence the correct approach, as stated in S
v
Chabalala
[2]
is: ".
..to
weigh up all the elements which point towards the guilt of the
accused against all those which are indicative of his innocence,

taking proper account of inherent strengths and weaknesses,
probabilities and improbabilities on both sides and, having done so,

to decide whether the balance weighs so heavily in favour of the
State
as
to
exclude any reasonable doubt about the accused's guilt."
[78]
It is essential and convenient, for the
purposes of this judgment, to consider the legal principles
applicable to a charge of conspiracy
to commit or procure the
commission of an offence as well as the principles applicable to the
doctrine of common purpose. Section
18(2) of the Riotous Assemblies
Act, 17 of 1956 provides as follows:
"Any
person who-
(a)
conspires
with any other person to aid or procure the commission of or to
commit; or
(b)
incites,
instigates, commands or procures any other person to commit, any
offence, whether at common law or against a statute or
statutory
regulation,
shall be
guilty of an offence and liable on conviction to the punishment to
which a person convicted of actually committing that
offence would be
liable."
[79]
In S
v
Alexander and Others
[3]
the following is stated about the crime of conspiracy, which I take
liberty to repeat generously:
"A
conspiracy is an agreement between two or more persons to commit
a
crime. The
parties to the agreement must be ad idem as to their object
-
Harris v R.,
1927
NPD 330
-
and
in terms of decisions in English Courts the agreement must be such
that, if lawful, it would be capable of being enforced. It
is not
necessary, to constitute a conspiracy, that anything should be done
to put the criminal design into execution, for the conspiracy
is
complete as soon as the persons concerned have agreed together. Nor
is it necessary on
a
charge of
conspiracy that the prosecution establish that the individual
conspirators were in direct communication with each other.
In this
connection the following quotation in the judgment in R. v. Meyrick,
21. C.A.R. 94 at p. 99, is illustrative: "And
as far as proof
goes, conspiracy, as GROSE, J., said in Rex v. Brissac, is generally
'matter of inference deduced from certain
criminal acts of the
parties accused, done in pursuance of an apparent criminal purpose in
common between them'. The other passage
to which I wish to refer is
in the well-known charge of Mr. JUSTICE FITZGERALD in the case of
Queen v Parnell and Others, reported
in 14. Cox, Criminal Cases at p.
515. Mr. JUSTICE FITZGERALD, having cited the words of Mr. JUSTICE
GROSE which I have just read,
said: 'It may be that the alleged
conspirators have never seen each other, and have never corresponded.
One may have never heard
the name of the other, and yet by the law
they may be parties to the same common criminal agreement. Thus, in
some of the Fenian
cases tried in this country, it frequently
happened, that one of the conspirators was in America, the other in
this country; that
they had never seen each other, but that there
were acts on both sides which led the jury to the inference, and they
drew it, that
they were engaged in accomplishing the same common
object, and when they had arrived at this conclusion, the acts of one
became
evidence against the other." See also R v Heyne and
Others (1)
1958 (1) SA 607
(W), to the effect that on a charge of
conspiring to commit an offence proof of concerted action is not
confined to direct evidence
of an agreement to commit the offence but
the entire conduct of each conspirator may be relied upon to
establish either an agreement
to commit the offence or the actual
commission of the offence or both. Where two or more persons have
associated themselves in
an organisation with the agreed purpose or
object of committing an offence, they have in law formed a conspiracy
to commit the
contemplated offence. It follows that any person who
joins such an organisation as a member, well knowing the object or
purpose
thereof or who remains a member after becoming aware of the
purpose thereof, has signified by his conduct his agreement with the

aims of the said organisation and has made himself guilty of a
conspiracy to commit such offence."
[80]
Also in
S
v Cooper and Others
[4]
the court said:
"A conspiracy normally
involves an agreement, express or implied, to commit an unlawful act.
It has three stages, namely, (1)
making or formation, (2) performance
or implementation and (3) discharge or termination. When the
conspiratorial agreement has
been made, the offence of conspiracy is
complete, it has been committed and the conspirators can be
prosecuted even though no performance
has taken place. But the fact
that the offence of conspiracy is complete at that stage does not
mean that the conspiratorial agreement
is finished with. It is not
dead. If it is being performed, it is very much alive.
So
long as
performance continues, it is operating, it is being carried out by
the conspirators, and it is governing or at any rate
influencing
their conduct. The conspiratorial agreement continues in operation
and therefore in existence until it is discharged
(terminated) by
completion of performance or by abandonment or frustration whatever
it may be; per Lord PEARSON in Director of
Public Prosecutions v Doot
and Others,
(1973) 1 All E.R. 940
(H.L.) at p. 951. While the
conspiratorial agreement is in existence it may be joined by others
and some may leave it. The person
who joins it is equally guilty; R v
Murphy, (1837) 8
C.
&
P. 297 at
p. 311
[1837] EngR 1120
;
(173 ER. 502
at p. 508). Although the common design is the
root of
a
conspiracy, it is
not necessary to prove that the conspirators came together and
actually agreed in terms to have the common design
and to pursue it
by common means and so carry it into execution. The agreement may be
shown like any other fact by circumstantial
evidence.
.....
It is generally
a
matter of
inference deduced from certain acts of the parties concerned, done in
pursuance of a criminal purpose in common between
them."
[81]
The broad wording of section 18(2)(a)
makes it evident that aside from a person being culpable if he
conspires with another to commit
the offence alone, he will also
commit the statutory offence of conspiracy if the unlawful agreement
involves executing only a
step in the plan, or is but one of a number
of separately concluded agreements with others to attain the same
unlawfully agreed
objective. It will also suffice if a preparatory
step is taken towards achieving the unlawful objective agreed
upon.
[5]
As my brother, Spilg J puts it:
"It therefore appears that
the actus reus in respect of
a
conspiracy may be
sufficiently established by the conclusion of the agreement to commit
the crime itself, but is not limited to
that alone. The actus reus
may be found in additional acts performed by one of the conspirators
in furtherance of the purported
agreement, and of which the accused
was aware and did not disassociate from.
[6]
[82]
In summary therefore, the determination
as to whether or not there was an agreement to commit robbery is a
question of fact, to
be decided upon consideration of all of the
evidence presented in relation to the alleged conspiracy. It is also
a matter of inference
deduced from the acts of the parties done in
pursuance of a criminal purpose in common between them.
[83]
The common law offence of robbery as
commonly described, consists in the theft of property by unlawfully
and intentionally using
violence to take property from another
alternatively by using threats of violence to induce the possessor of
the property to submit
to the taking of the property.
[84]
Counsel for the accused contend that the
evidence placed before the Court does not show that the accused
committed the offences
preferred against them. In this case,
regarding the events on the morning of 1 April 2017, the trial
proceeded on the basis that
the alleged events on the morning of 1
April 2017 occurred along the N11. In the context of the belated
dispute now, which was
never put to the state witnesses, but equally
significant, in the wider context of the outcome of this trial as
well as the conduct
of the defence, it is established in our law that
a cross-examiner should put his or her defence
"
on each and every aspect which he or she wishes to place in issue,
"explicitly and unambiguously, to the witness implicating
his
client.
[7]
[85]
As Smallberger
et
al
put it:
"[A]
criminal trial is not
a
game
of catch-as-catch­ can, nor should it be turned into
a
forensic ambush" .
The
learned justices continued aptly as follows:
"[51]
In this respect, we are
in full agreement with the comments made by the Constitutional Court
in President of the Republic of South
Africa and Others v South
African Rugby Football Union and Others
[1999] ZACC 11
;
2000 (1) SA 1
(CC) at 36 J
-
37 E.
"[61] The institution of
cross-examination not only constitutes
a
right, it also
imposes certain obligations. As a general rule it is essential, when
it is intended to suggest that
a
witness is not
speaking the truth on a particular point, to direct the witness's
attention to the fact by questions put in cross­
examination
showing that the imputation is intended to be made and to afford the
witness an opportunity, while still in the witness-box,
of giving any
explanation open to the witness and of defending his or her
character. If a point in dispute is left unchallenged
in
cross-examination, the party calling the witness is entitled to
assume that the unchallenged witness's testimony is accepted
as
correct. This rule was enunciated by the House of Lords in Browne v
Dunn [(1893) 6 R 67 (HL)J and has been adopted and consistently

followed by our courts.
[62]
The rule in Browne v Dunn is not
merely one of professional practice but 'is essential to fair play
and fair dealing with witnesses.'
[See the speech of Lord Herschell
in Browne v Dunn, above] . .
.
[63]
The precise nature of the
imputation should be made clear to the witness so that it can be met
and destroyed... particularly where
the imputation relies upon
inferences to be drawn from other evidence in the proceedings. It
should be made clear not only that
the evidence is to be challenged
but also how it is to be challenged. This is so because the witness
must be given an opportunity
to deny the challenge, to call
corroborative evidence, to qualify the evidence given by the witness
or others and to explain contradictions
on which reliance is to be
placed."
[86]
The belated dispute being that accused 1
as supported by accused 3, did not drive the Ford Ranger on the N11
where Boxer Grocery
Store is situated, but only on the outskirts of
town along De Klerk Street. The state witnesses were not challenged
in this regard
during cross-examination. Neither was there any
suggestion that accused1, the driver did not skip red traffic lights,
on his incorrect
side of the road, which formed the basis of the
allegations in count 11. There was no suggestion made that the
pursuing police
cars did not have their blue lights on or that they
did not activate their sirens.
[87]
The allegation by accused 1 that he fled
from the scene after hearing shots from people whom he assumed were
robbers, is not supported
by any objective facts. This was in broad
daylight. Flashing blue lights and sirens, which make police vehicles
more visible on
patrol, may only be used in case of emergency, and
intended to order all other vehicles to make way, since these
vehicles have
the absolute right of way. I find it highly improbable
that the police would not have activated their blue lights and sirens
when
accused one skipped the robots that were red for his side of the
traffic. Police blue lights are in their very nature very bright
,
and siren very loud as Makela confirmed that he heard the loud sound
of this siren well before he spotted the second police BMW.
There is
a positive duty and a legal obligation to stop upon being signalled
to do so by members of the SAPS, which the accused
in this case
ignored for his own nefarious reasons.
[88]
It is trite, as I alluded to above that,
it is grossly unfair and improper to let a witness' evidence go
unchallenged in cross-examination
and afterwards argue that he or she
must be disbelieved. The accused's failure to cross-examine the state
witnesses on such material
issues that they ultimately challenged
only in their evidence in chief, ought to prevent them from later
disputing the truth of
the witnesses' evidence. As indicated in
Carroll v Caroll
[8]
authoritatively by Moshidi J in
S
v Msimango and Another
[9]
:
"The objects sought to be
achieved by cross-examination are to impeach the accuracy,
credibility and general value of the evidence
given in chief·,
to sift the facts already stated by the witness, to detect and expose
discrepancies or to elicit suppressed
facts which will support the
case of the cross-examining party."
[89]
As the renowned Wigmore on Evidence, 3rd
ed. Vol. V, para 1367, states:
"Not even the abuses, the
mishandlings, and the puerilities which are so often found associated
with cross-examination have
availed to nullify its value. It may be
that in more than one sense it takes the place in our system which
torture occupied in
the mediaeval system of the civilians.
Nevertheless,
it is beyond any doubt the greatest legal engine ever invented for
the discovering of truth
.
"(my
underlining)
[90]
It is however also trite that the rule
regarding failure to cross-examine, is by no means inflexible, but
admit of exceptions. In
my view, however, there are no grounds for
any exceptions regarding this case on the relevant disputed evidence.
The allegation
that the Ford Ranger was driving along Nelson Mandela
supported by accused 2's version, is consistent with the
probabilities in
that there are no robots on De Klerk st, but stop
signs. The evidence in that regard being that the Ford Ranger was
being driven
passing red robots and in the face of oncoming traffic
that was never disputed. This manner of driving on a public road is
manifestly,
reckless driving. These probabilities are also borne out
by the common sense inference that had it been to the contrary
version,
it would have been put to the State witnesses to advance the
case of the accused.
[91]
It is inconceivable that counsel would
not have been alive to the implications of the evidence relating to
the route travelled by
the Ford Ranger. In my view, therefore, the
State has proved that the incident complained of happened along the
N11, Nelson Mandela
Drive where the Box Grocery Store is situated. In
coming to this conclusion, I have relied solely on the facts as they
emerged
during the trial, and the well-known rules of our common law
relating to the establishment of prima facie proof, the absence of
a
rebuttal thereof and the burden of proof in a criminal case. This
conclusion is, of course, fatal to the accused's version as
testified
in chief. The conduct by accused 1 of driving with false number
plates, and fleeing when the police confronted him. That
conduct,
unexplained, together with the evidence linking accused 1 with the
place where the offending objects, in this case the
firearms were
recovered, results in the overwhelming conclusion that he was himself
involved with the stolen Ford Ranger. It was
not a jolly ride as
accused number one suggested. For a criminal mission of that nature,
the two deceased would not have taken
along accused 1, 2, and 3. The
respective versions by the accused in this regard cannot under any
stretch of imagination, be reasonably
possibly true.
[92]
The version by the state witnesses that
the two deceased were in possession of firearms including the rifle
at least, was not seriously
challenged. None of the accused could
explain where the firearms came from. Any admission by either of them
that the firearms came
from their motor vehicle would have been fatal
to their case. It is an unfathomable that the police would have
planted these firearms
at the scene or in the Ford Ranger as
insinuated. At any rate, this is not supported by the objective
facts. Neither was it suggested
during the trial or in argument
before this court. To do so would have been criminal conduct on the
part of the police. If that
where the case I doubt if any of the
accused would have lived to tell their story. Accordingly, I find
that some of the suspects
were in possession of the firearms and by
necessary implication the ammunition, which were seized from the
scene that day.
[93]
Accordingly, I find that the taking of
firearms to the scene and ammunition to be fired from such firearms
is, in my view, consistent
only with the intention to use violence or
the threat of violence to carry out the agreed criminal enterprise,
namely the unlawful
taking of cash from the cash in transit vehicle.
The presence of firearms must also have been calculated to act as a
threat use
of violence directed at the intended victims. In my view,
the only reasonable inference that can be drawn from this fact is
that
they foresaw the possibility that, in the execution of the
criminal enterprise violence or the threat of violence may be
required
in order to achieve the object of the criminal enterprise,
namely the unlawful taking of the cash. The criminal enterprise that

was the subject of the conspiracy contemplated the commission of the
offence of robbery because of accused 3'statement and the
information
received by the police.
[94]
Any argument to the contrary fails to
take into account the authorities referred to hereinabove. As noted
in the above matters the
means by which the criminal enterprise is to
be carried out need not be established in order to establish the
existence of the
conspiracy. It is sufficient if the evidence
discloses an agreement to commit an unlawful act, which is the object
or purpose of
the conspiratorial agreement as apparent from the facts
in this case.
[95]
Against this however must be considered
the fact that the conspirators knew that the criminal enterprise
would take place in a public
street in broad daylight from an armed
vehicle in which there were at least one of them armed with a rifle
that could not on the
objective evidence, be hidden in the double cab
Ford Ranger. In these circumstances, it can hardly be seriously
suggested that
they did not, in fact, foresee the possibility that
violence would be required in order to carry out the enterprise.
[96]
The exchange of gunfire continued across
a wide area beyond that which the forensic evidence covered even on
the version of the
accused as the robbers attempted their escape. It
is hardly surprising therefore; that, the 37 spent rifle cartridges
picked up
from the scene of the fatal incident involving the deceased
could not establish a connection between the firearms including the

offending rifle seized at the scene. As accused one suggested during
cross­ examination, there were at least 99 spent cartridges.

Added to this being the presence of gloves at the scene.
[97]
Makela impressed as a very competent
witness. He remained unshaken during cross-examination. I find no
serious argument advanced
on behalf of any of the accused suggesting
that his evidence should be rejected as being not credible or
reliable. Of course, there
discrepancy with regard to whether he
conveyed to the team the number of suspects involved contrary to what
Marokane testified
in that regard. There was also discrepancy
regarding whether accused 1 was still at the scene when the forensic
evidence was collected.
[98]
I do not find these discrepancies to be
material regard being had to the totality of the evidence. In any
event, it is competent
for a Court, while rejecting one portion of
the sworn testimony of a witness, to accept another portion. The fact
of the matter
is that, there were five occupants inside the Ford
Ranger from the moment the police took sight of it, throughout the
chase and
the arrest of the accused, who were undoubtedly on an
unlawful mission. Similarly, the criticism against Marokane is
unfounded
regard being had to the totality of the evidence.
[99]
Both officers withstood lengthy
cross-examination over a number of days, and did not contradict
themselves in any meaningful way
regarding the material portions of
their evidence. As for the details regarding his statement, the
criticism overlooks the reality
in this country that statements taken
down by the police are frequently not taken with the degree of care,
accuracy and completeness
which is desirable... "
[10]
.
One might add the poor quality of education received by black people
because of apartheid policies.
[100]
The case against accused 3 is also
founded upon the content of the statement made by him to Col Sivhagi.
For the reasons indicated
herein above, the statement was ruled to be
admissible following the trial within a trial. It was submitted on
behalf of accused
3 essentially that, the admissibility should be
reconsidered in the light of the evidence tendered by the accused.
The reliability
of the statement is to be assessed as a whole, having
regard to the existence of evidence, if there is such evidence, which
provides
some corroboration for the content of the statement.
[101]
What is apparent from the content of the
confession statement, however, is that there was a conspiracy that
concerned the robbery
of the cash in transit motor vehicle with
firearms by the accused including the two deceased, and that a stolen
motor vehicle would
be used in the course of executing the robbery.
The evidence
aliunde
the
said statement that I found in favour of the state is that the stolen
Ford Ranger was found parked next to the grocery store
with all the
five men, including all the accused inside. The Ford Ranger fled from
the scene at high speed upon site of the police
for no credible
reason. The only reason I find is that, it is fair to conclude that
it was because of the firearms in the motor
vehicle and the fact that
the motor vehicle was stolen, in addition to the reasons proffered by
accused 3. In my view, all of these
features accord with the common
cause or objective facts established by the prosecution. In the main
trial, he was contradicted
by the version of accused 2 regarding
whether the Ford Ranger travelled on the N11.
[102]
There is in my view no basis for
reconsidering the confession made by accused 3 to Col Sivhagi. That
is so because the accused tendered
no credible evidence to suggest
that the statement was not freely and voluntarily made and that he
was unduly influenced to make
the statement. It was argued on behalf
of the accused that the content of the statement made by him was not
supported by evidence
tendered by the prosecution or was
unsubstantiated and therefore unreliable. I have already found that
accused is an unreliable
witness whose version I held, to be
improbable in his confession statement.
[103]
It is trite as regards accused 3, the
general purpose of s 115 is to expedite criminal proceedings and to
make more effective. In
S v Seleke
[11]
Rumpff CJ stated that the purpose of the section is to eliminate
unnecessary evidence by establishing exactly what the accused
wishes
to dispute by his plea of not guilty
[12]
.
And in S v Mayedwa
[13]
it was said that the purpose of the explanation of plea procedure is
to permit the accused to reveal ab initio what the essential
basis of
his defence will be and that this will tend to shorten the trial 'in
that the State will then be apprised as to the aspects
of the case on
which its evidence should be concentrated
[14]
.
In S v Mjoli
[15]
Didcott J stated the following with regard to informal admissions:
"[informal admissions] do
not prove the facts admitted. They are nevertheless evidence of such
facts. They go into the scale,
to be weighed with everything else
there. Their individual weight may be great or small, according to
the circumstances. Sometimes
they happen to be decisive, simply
because nothing further or better on the point is forthcoming.
Whenever that turns out to be
the result, however, the proof
engendered by the admission is a conclusion of fact drawn from all
the evidence in the particular
case, not a conclusion of law dictated
by a statutory provision out to set proved by the testimony of the
witness to whom it was
made. That the same goes for an admission made
by the accused person himself in the presence and hearing of the
court trying him
is, as a general rule, equally plain. Admissions
like that require no additional or more formal proof I can see no
reason why an
exception should be carved from the general rule,
merely because the stage of the proceedings spawning the admission is
that regulated
by s 115.'
[16]
[104]
There is a clear material contradiction
between the Section 115 (1) statement by accused 3 in which he stated
that he and Solly
found the owner of the Ford Ranger in the company
of two other unknown men (accused 1 and 2) and his evidence in chief
that the
accused 2 was picked up as he hiked for a lift on the old N1
South. The significance hereof is that, the version by all the
accused
concerning how accused 2 came into the picture and the
reasons thereof is not only highly suspect, but contradicted by
accused
3's plea explanation. Significantly, the plea explanation in
that regard accords with his confession.
[105]
As indicated above with reference to
established case law, the concurrence of minds to a conspiracy need
not necessarily be by way
of explicit spoken words, for the agreement
can be arrived at tacitly and by conduct
[17]
.Where,
however, the agreement is sought to be inferred solely from the
conduct of the alleged conspirators, such inference must,
on the
cardinal rules of logic enumerated in
R.
v. Blom,
1939 A.D. 188
at pp. 202-3,
be consistent with all the proved facts, and the proved facts must in
turn be such that they exclude every reasonable
inference from them
save the one sought to be drawn. All the accused including the two
deceased were beyond a reasonable doubt,
I find, parties to the
conspiracy to commit robbery. In respect of accused 1 and 3 there is,
it is common cause, no evidence that
they were at any time in
possession of any unlicensed firearms or ammunition. Their liability
is solely sought to be founded on
joint possession of the firearms
recovered from the scene of the robbery because of their status as
co-perpetrators.
[106]
The question of joint possession of
firearms and ammunition has been dealt with in several judgments. In
S v Nkosi
[18]
Marais J found that the inference of joint possession is only
justified where:
"...the State has
established facts from which it can properly be inferred by a Court
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."
The
SCA agreed with the statement as being the correct legal position in
S v Mbuli
2003 (1) SACR 97
(SCA) at para 71.
[19]
[107]
Not so long ago, in S v Kwanda
[20]
, the court in overturning a conviction on charges of contravening
section 32 (1) (a) and (e) of the Arms and Ammunition Act 75
of 1969
(the now repealed Act) stated that knowledge that a co-accused is in
possession of a firearm is not sufficient to establish
that such
accused had the intention to jointly possess a firearm with his co­
accused. The court further explained that:
"In this matter there are
no facts from which it can be inferred that the appellant had the
necessary intention to exercise
possession of the firearm through
Mahlenche or that the latter had the intention to hold the firearm on
behalf of the appellant."
[21]
[108]
That is also the case in this matter.
There are no facts which permit an inference to be drawn that accused
1 and 3 had the intention
to exercise possession of firearms or that
those who had actual possession intended to hold the firearms on
behalf of accused 1
and 3. Accordingly, accused 1 and 3 cannot be
convicted of possession of firearms and ammunition as set out in the
relevant counts
of the indictment. Similarly, I cannot find
conclusive evidence with regard to which of the two pistols accused 2
was in possession
thereof considering that one had a dysfunctional
firing pin. Neither can I infer, by parity of reasoning that, the two
deceased
held the other two firearms on his behalf.
[109]
The evidence show beyond a reasonable
doubt that members of the South African Police Service had received
information about a planned
robbery at a Boxer store with the use of
a particular motor vehicle, the Ford Ranger. I find it inconceivable
that the police would
have somehow fortuitously run into the Ford
Ranger in the street and tried to stop it for no apparent reason.
When police arrived,
at the targeted area accused number 1 took off
at high speed, skipping red robots obviously to evade arrest. Had
Jappie been alive,
I have no doubt that the narrative regarding where
the stolen Ford Ranger came from, would have been different. It is
safe to infer
under the circumstances that accused 1 fled from the
police at the scene on Nelson Mandela because of the offending
objects, that
were in the Ford Ranger as well as the motor vehicles
itself, which had been stolen, and that their cover had been blown
up. I
accept the state's version that the police were shot at first
along Bezuidenhout St and retaliated in defence.
[110]   The fact that
gun the residue test conducted turned out positive from Solly,
confirms this aspect. The fact that
it was only Solly who turned
positive is hardly surprising, there were hand gloves recovered from
the scene which were no one bothered
to subject to forensic testing.
On the probabilities, some of them jumped out of the moving Ford
Ranger still armed in a confrontation
with the police. That there was
a confrontation is corroborated by the fact that both deceased
suffered chest wounds, which cost
them their lives. I reject the
version by accused 2 that Jappie was shot as he ran towards the tree.
If that were the case, he
would have had a bullet entry wound at the
back. The evidence clearly establish that that the firearm next to
Jappie had jammed
during the confrontation. All these findings are
concomitant with the probabilities of a confrontation. Otherwise, all
the occupants
in the motor vehicle could easily have surrendered
leaving the offending firearms in the motor vehicle.
[111]
On the common cause evidence and from
the side of the accused at least two of them ran to the tree is
consistent with the state's
version. In this instance however I
accept the state's version all five initially took cover behind the
tree and some of them at
least realized that the
'
game was not worth the candle'.
The
criticism that the deceased, Solly could not have ran to the tree
given the nature of the injury on his foot is devoid of any
merit. To
start with, they all jumped from a moving motor vehicle. Solly did
not die immediately after being shot but paramedics
were called by
the state witnesses attempted to save his life until he succumbed to
his injuries. I accept the state's version
essentially that he was
one of those that surrendered. Undoubtedly, the suspects were
out-gunned by the police in relation to the
number of rifles used,
which led to the two fatalities. Had Solly been rendered immobile ,
he would not have jumped out of the
Ford Ranger in possession of the
R5 rifle.
[112]
It is improbable that, accused 2 and for
that matter accused 1 and 3 as I have already found , would have been
taken along by the
two deceased if they were not party to the a
commission of a particular crime. The suspects had the means to carry
out the planned
robbery and in addition, a bag to carry the cash
with, which hardly had any contents. At the scene of the shootout,
all of them,
as indicated above jumped from a moving vehicle, which
can only points to guilt. I reject as I do the version by accused 1
that
he suspected the two white BMW's to be some robbers targeting
them. This cannot under any stretch of imagination accord with the

probabilities given that both BMWs had their police blue lights on as
well as their sirens. One can then ask rhetorical question,
why jump
out of a moving motor vehicle risking life and limb at the sight of
the police? The sound of a police siren and blue lights
is a common
feature in this country, with high incidence of serious crimes.
[113]
It is appropriate to restate the proper
approach to its evaluation, articulated consequently in S
v
Reddy and Others
[22]
:
"In assessing
circumstantial evidence one needs to be careful not to approach such
evidence upon a piece-meal basis and to
subject each individual piece
of evidence to
a
consideration of
whether it excludes the reasonable possibility that the explanation
given by an accused is true. The evidence needs
to be considered in
its totality. It is only then that one can apply the oft-quoted
dictum in R v Blom
1939 AD 188
at 202-3, where reference is made to
two cardinal rules of logic which cannot be ignored. These are,
firstly, that the inference
sought to be drawn must be consistent
with all the proved facts 30
1996 (2) SACR 1
(AD) at p 8 (c) top 9
(e) and, secondly, the proved facts should be such 'that they exclude
every reasonable inference from them
save the one sought to be
drawn'.
This is
an approach I take of this matter.
[23]
[114]
The matter is aptly summed in the
following remarks of Davis AJA in R v De Villiers:
''The
Court must not take each circumstance separately and give the accused
the benefit of any reasonable doubt as to the inference
to be drawn
from each one so taken. It must carefully weigh the cumulative effect
of all of them together, and it is only after
it has done so that the
accused is entitled to the benefit of any reasonable doubt which it
may have as to whether the inference
of guilt is the only inference
which can reasonably be drawn. To put the matter in another way; the
Crown must satisfy the Court,
not that each separate fact is
inconsistent with the innocence of the accused, but that the evidence
as
a
whole
is beyond reasonable doubt inconsistent with such innocence."
[24]
[115]
It is trite from a long list of
authorities that, when triers of fact come to deal with
circumstantial evidence and inferences to
be drawn therefrom, they
must be careful to distinguish between inference and conjecture or
speculation. There can be no inference
unless there are objective
facts from which to infer the other facts, which it is sought to
establish. In some cases, the other
facts can be inferred with as
much practical certainty as if they had been actually observed. In
other cases, the inference does
not go beyond reasonable probability.
Nevertheless, if there are no positive proved facts from which the
inference can be made,
the method of inference fails and what is left
is mere speculation or conjecture. In the instant case, the
actus
reus
may be found in additional acts
performed by accused 1 when he drove away from the scene skipping red
robots, with the police in
pursuit with the blue lights on and
sirens.
[116]
In addition, when the police were shot
at by means of a rifle from the Ford Ranger by one of the
conspirators, it was in furtherance
of the purported agreement and
the fact that some of the conspirators jumped out of the Ford Ranger
whilst armed to confront the
police, of which the accused was aware,
and did not disassociate themselves there from. The fact that Solly
had gunpowder residue
is corroborative of the fact that a firearm was
used to discharge an arm.
[117]
However, in this instance, all these
factors taken cumulatively regarding this matter, I hold that, on the
cardinal rules of logic
referred to in
R.
v. Blom
the State has shown beyond
reasonable doubt that there was a concluded agreement between them-an
actual concurrence of minds inferable
from their conduct.
[118]
In
R. v.
S.
[25]
relied upon in S v Cooper
[26]
,
it is stated that,
"Once there
is evidence aliunde of
a
common
enterprise and the parties thereto, the acts and statements,
executive
as
opposed
to narrative, of one of the co-conspirators are admissible to confirm
the scope of the common enterprise or the conspiracy
and the nature
of the steps taken to carry it out, and there
seems
to be no reason why such evidence
should not be used to confirm the other evidence
as
to the parties who took part therein;
see
judgment
of SCHREINER, J., as quoted in R. v. Leibbrandt,
1944 A.D. 253
at p.
276; R. v. Mayet,
1957 (1) S.A. 492
(A.D.) at p. 494."
[119]
With reference to the criticism against
the arresting officers, it is appropriate to refer to the following
remarks. In
S v Hadebe
&
Others S v Hadebe
&
Others
[27]
with reference to
Moshesi
&
Others
v R
(1980-1984) LAC 57
, enunciated
the correct approach to resolving such a problem as follows:
''The
question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt of the appellants
was
established beyond reasonable doubt. The breaking down of a body of
evidence into its component parts is obviously a useful
aid to a
proper understanding and evaluation of it. But, in doing
so,
one
must guard against a tendency to focus too intently upon the separate
and individual part of what is, after all,
a
mosaic
of proof Doubts about one aspect of the evidence led in
a
trial
may arise when that aspect is viewed in isolation. Those doubts may
be set at rest when it is evaluated again together with
all the other
available evidence. That is not to say that
a
broad
and indulgent approach is appropriate when evaluating evidence. Far
from it. There is no substitute for a detailed and critical

examination of each and every component in
a
body
of evidence. But, once that has been done, it is necessary to step
back
a
pace
and consider the mosaic as
a
whole.
If that is not done, one may fail to see the wood for the trees."
[120]
In our law, the classic decision is that
of Malan JA in
R v Mlambo
[28]
as this court also alluded in
Nkuna
v S
[29]
(per Mokgohloa OJP), which is worth
repeating, the learned Malan JA deals, at 737F-H , with an argument
(popular at the Bar then)
that, proof beyond reasonable doubt
requires the prosecution to eliminate every hypothesis which is
inconsistent with the accused's
guilt or which, as it is also
expressed, is consistent with his innocence. Malan JA rejected this
approach, preferring to adhere
to the approach which
'
at one time found almost universal favour and which has served the
purpose
so
successfully
for generation'
(at 738A). This
approach was then formulated by the learned Judge as follows (at
738A-C)
'In my
opinion, there is no obligation upon the Crown to close every avenue
of escape which may be said to be open to an accused.
It is
sufficient for the Crown to produce evidence by means of which such
a
high
degree of probability is raised that the ordinary reasonable man,
after mature consideration, comes to the conclusion that
there exists
no reasonable doubt that an accused has committed the crime charged.
He must, in other words, be morally certain of
the guilt of the
accused.
An
accused's claim to the benefit of
a
doubt
when it may be said to exist must not be derived from speculation but
must rest upon
a
reasonable
and solid foundation created either by positive evidence or gathered
from reasonable inferences which are not in conflict
with, or
outweighed by, the proved facts of the case'
[121]
Regarding the murder charges, this case
contains the unique feature of some of the would-be robbers being
killed by shots, most
probably fired by the police during their
confrontation with them, as Makela conceded. The shootout, it is
clear from the common
cause evidence, was in the nature of a
constantly moving and generally uncoordinated event. The incapability
of someone, in this
case the police involved, to consequently distil
the action in a description analogous to a choreographic explanation
is conceivable.
[122]
It has become an all too common
occurrence for criminals to use even fake guns to commit offences. An
attacker drawing a replica
firearm on a victim to commit a crime can
be charged with the pointing of a firearm, even though it is not a
real firearm. In terms
of
section 120(6)(a)
of the
Firearms Control
Act 60 of 2000
it is an offence to point any firearm, an antique
firearm, or airgun, whether or not it is loaded or capable of being
discharged
at any other person without good reason to do so and (b)
anything that is likely to make a person believe it is a firearm, an
antique
firearm, or airgun without good reason to do so. As Cameron
JA (as he then was) puts it
[30]
:
"
It is now well established that
a
two-stage
process is employed in our law to determine whether
a
preceding
act gives rise to criminal responsibility for
a
subsequent
condition. The first involves ascertaining the facts; the second
imputing legal liability. First it must be established
whether the
perpetrator as
a
matter
of fact caused the victim's death. The inquiry here is whether,
without the act, the victim would have died (that is, whether
the act
was a conditio sine qua non of the death). But the perpetrator cannot
be held responsible for all consequences of which
his act is an
indispensable pre­ condition.
So
the
inquiry must go on to determine whether the act is linked to the
death sufficiently closely for it to be right to impose legal

liability. This is
a
question
of law, which raises considerations of legal policy".
[123]
Now,
on
the application of the doctrine of common purpose to the death of
some of the co-perpetrators,
S v
Nkombani
&
Another
[31]
is instructive. In that case, the 2
appellants, the deceased and 1 other conspired to carry out (and in
fact carried out) a robbery
at a filling station. The deceased
(co-robber) got into a scuffle with a worker and was accidentally
shot dead by the 1
st
appellant. The 2
nd
appellant argued though he foresaw someone being harmed, he was not
reckless that it happened or not, and therefore no constructive

intention to kill the deceased could legally be imputed to him. The
court was not convinced and found that he foresaw that anybody

associated with the robbery could be killed by the robbers' revolvers
and that he was indifferent as to who might thus be killed.
Their
conviction was confirmed by the Appellate Division.
[124]
On the vexed question whether the
accused intended to cause death of the two deceased, the law in this
regard is settled and very
clear.
"
If
a
person
foresees the possibility of death resulting from his deed and
nevertheless does it, reckless whether death ensues or not,
he has in
law the intention to cause death"
per
Holmes JA
[32]
.
In
S v Malinga and Others
[33]
the court said:
"Now
the liability of a socius criminus is not vicarious but is based upon
his own mens rea. The test is whether he foresaw
(not merely ought to
have foreseen) the possibility that his socius would commit the act
in question in the prosecution of their
common purpose. R v Hercules,
1954 (3) SA 826
(AO) at p. 831; R v Nsele,
1955 (2) SA 145
(AD) Cat
p. 151; R v Bergstedt,
1955 (4) SA 186
(AD) at p. 188. In considering
the issue of intention to kill, the test is whether the socius
foresaw the possibility that the
act in question in the prosecution
of the common purpose would have fatal consequences, and was reckless
whether death resulted
or not. R v Horn,
1958 (3) SA 457
(AD), and
cases there cited.
In
both of the foregoing tests the foresight may of course be proved by
inference; and remoteness of the possibility is relevant
to the D
subjective question of foresight thereof."
[125]
The State has in my view, at any rate,
succeeded in proving a 'constructive' intent beyond a reasonable
doubt, which as indicated
may also be proved by inference drawn from
all the circumstances of the case. The facts of the following case
bear a close resemblance
to the facts before this court. In
Xabendlini v S
[34]
the Supreme Court of Appeal (SCA)
dismissed an appeal by the appellant, Mandia Xabendlini, against his
conviction of the pointing
of a firearm in contravention of the then
applicable s 39(1)(i) of the Arms and Ammunition Act 75 of 1969. The
facts giving rise
to the appeal were briefly the following. Mr
Thompson and Mr Badenhorst had been employed as security officers by
Fidelity, a company
involved in the transportation, delivery and
collection of money. They were on duty on the morning of 4 June 1998,
and had delivered
money to Woolworths in Adderley Street, Cape Town.
As they were leaving Woolworths, they were attacked and robbed of an
empty metal
money container and the firearm, which Badenhorst had in
his possession. The persons involved in the robbery left the scene in
a white Ford Bantam bakkie. Sergeants du Toit and Beesley who had
been in the vicinity pursued the bakkie. While in pursuit of the

bakkie, the police officers fired shots directed at the wheels of the
bakkie. They noticed a passenger in the bakkie, (later established
to
be the appellant) pointing a firearm at them. The police then fired
shots directly at the appellant, whereafter he disappeared
from their
view. The bakkie crashed into another vehicle and a short while later
was forced to stop. The two occupants, the appellant
and his former
coaccused, were arrested. In dismissing the appeal, Theron JA (as she
then was), with Harms DP and Malan JA concurring
held at paragraph 8:
"Every
case must ultimately be determined with reference to its facts. I tum
now to the facts of this matter. The police officers
were travelling
close behind and in pursuit of the bakkie in which the appellant and
his former co-accused were travelling. The
police officers had fired
shots at the bakkie. The occupants of the bakkie were, or must have
been aware that they were being pursued
by the police. The police
officers noticed the appellant pointing
a
firearm
at them. They were uncertain whether they would have been struck by
a
bullet
fired by the appellant. Sergeant du Toit testified that that
possibility existed. Sergeant Beesley said in evidence that
he could
not express an opinion on whether any bullet fired would have struck
them or their vehicle. What is clear, however, is
that the
appellant's pointing of the firearm in their direction induced the
belief in their minds that they were going to be shot
at. The police
officers retaliated by shooting at the appellant. The appellant's
motive in pointing the firearm at the police officers
could only have
been to impede their pursuit of him and his companion and to evade
arrest. In the circumstances, the appellant's
conviction is supported
by the evidence".
[126]
The vital objective of law enforcement
is, as Sgt Makela alluded to, crime prevention. At a practical level,
the most effective
and direct means of law enforcement in relation to
serious crimes is to take preventative measures such as infiltrating
criminal
syndicates and apprehending the offenders prior to them
committing an offence as apparent from the facts regarding this
incident.
In this case, the accused must
have foreseen and therefore by inference did foresee the possibility
that the loaded firearms taken
to the scene of the planned robbery
would be used against the contingency of resistance, pursuit or
attempted capture. In the process,
they confronted the pursuing
police with firearms after jumping out of still moving Ford Ranger as
already found. Accordingly,
I find that the shots fired by one
culprit is, as far as their
mens
rea
is
concerned, the shot of each of them and must be imputed to each,
rendering them guilty of the attempted murder charges as well
as the
murder charges in relation to co-conspirators
[35]
.
This in the light of the well-known principles that counsel for the
accused also referred to established in
S
v Safatsa
[36]
and
S
v Mgedezi
[37]
.
[127]
As regard the allegations in respect of
count 1, is trite that the doctrine of recent possession permits the
court to make the inference
that the possessor of the property had
knowledge that the property was obtained in the commission of an
offence and in certain
instances was a party to the initial offence.
The inference that a person found to be in possession of stolen
property is the thief
or one of the thieves or one of the robbers can
only be drawn as the only reasonable inference where the nature of
the goods stolen
and the time lapse between the theft (or robbery)
and the discovery of the goods in that person's possession lend
themselves to
such a finding The court must be satisfied that (a) the
accused was found in possession of the property; (b) the item was
recently
stolen. When considering whether to draw such an inference,
the court must have regard to factors such as the length of time that

passed between the possession and the actual offence, the rareness of
the property, the readiness with which the property can or
is likely
to pass to another person
[38]
.
[128]
In this case, the period that passed was
approximately two months and 10 days. The question to be answered is
whether it can be
inferred from these facts that accused 1 was party
to the original robbery and theft of the Ford Ranger. The theft of
motor vehicles
in this country is a common scourge. That said, I
cannot conclude regard being had to the authorities and the facts
regarding this
matter that he was party to the actual robbery of the
Ford Ranger. However, the conduct by accused 1 and the explanation
givenremains
unsatisfactory given the totality of the evidence.
Accordingly regard being had to the circumstances under which the
Ford Ranger
was recovered was in the possession of accused 1, his
explanation as to how he came in possession of the Ford Ranger is
unconvincing
and remains unsatisfactory.
[129]
That accused 1 was test driving the car
in the outskirts of town along De Klerk St instead of an open road
which the R101 is, is
a fable version that stands to be rejected for
reasons already alluded to above. It is not supported even by any
objective facts
that there are alleged owner, Jappie, was on his way
to Gauteng, which is hundreds of kilometers away. The fact that he
was the
one who fled from the scene at Boxer makes his version even
more improbable. I have difficulty to infer that he was party to the

robbery on 21 January 2017. I have no difficulty in concluding
however, that the legal requirements for a conviction in
contravention
of s 36 of the General Law Amendment Act 62 of 1955,
which is a competent verdict for the crime of robbery charged in
terms of
section 260(f) of the Criminal Procedure Act have been met.
[130]
In all the circumstances, I conclude
that the state proved beyond reasonable doubt that the following
offences in respect of which
the version by all the three accused, in
turn, is not reasonably possibly true. In respect of count one,
accused one, Mogale is
convicted of possession of stolen property in
contravention of section 36 of the General Law Amendment Act 62 of
1955 whereas the
rest of the accused are acquitted. All the accused
are convicted as charged in respect of counts 2, 3, 4
,
5, 6 and 7. All three accused are
acquitted in respect of counts 8, 9 and 10. Finally, accused one
(Mogale), is convicted of reckless
driving in contravention of
section 63 (1) and other relevant provisions of the Nation of Road
Traffic Act 93 of 1996.
T
P Mudau
[Judge
of the High Court]
Date
of Judgment:
5 August 2020
APPEARANCES
For
the State:

Adv Mashiane
Instructed
by:

DPP Limpopo
For
Accused 1:

Ms
C A Alberts
Instructed
by:

De Meyer
Attorneys
For
Accused 2:

Adv L Mohlaka
Instructed
by:

Legal
Aid Polokwane
For
accused 3:

MST R Makweya
Instructed
by:

Mathopo-
Makweya Attorneys
[1]
S
v Jochems
1991 (1) SACR 208
(A) at 211f.
[2]
2003 (1) SA SACR 134 (SCA) at 139i- 140a
[3]
1965 (2) SA 818
(A) at 821-822.
[4]
1976 (2) SA 875
(T} at 8798 - F
[5]
Ngobese v S
(2019] 1 All SA 517 (GJ)
[6]
Id at para 29.
[7]
S v Boesak
[2000] ZASCA 112
;
2000 (1) SACR 633
(SCA) at 647 c-d
[8]
1947 (4) SA 37
(W), at paragraph 40.
[9]
2010 (1) SACR 544 (GSJ).
[10]
See S
v Xaba
1983 (3) SA 717 (A).
[11]
1980 (3) SA 745 (A)
[12]
Id at 753G
[13]
1978 (1) SA 509
(E)
[14]
Id at 511B
[15]
1980 (3) SA 172 (D)
[16]
Id at 179G-180A
[17]
See for example R. v. B
1956 (3) S.A. 363
(E) at p. 365).
[18]
1998 (1) SACR 284 (W)
[19]
Id at 286
[20]
2013 (1) SACR 137 (SCA)
[21]
Id at 139I-140A
[22]
(1996 (2) SACR 1 (AD)
[23]
Id at p 8(c) top 9(e)
[24]
1944 AD 493
at 508-9
[25]
1959 (1) S.A. 680 (C).
[26]
S v COOPER AND OTHERS
[1976] 3 All SA 253
[T].
[27]
1998 (1) SACR 426
(SCA) F-G.
[28]
1957
(4) SA
727
(A).
[29]
(A18/2016) [2018] ZALMPPHC 21 (11 May 2018)
[30]
S
v Tembani
(2007 (2) SA 291
(SCA) at para 10.
[31]
1963 (4) SA 877 (A)
[32]
In
S v Mini
1963 (3) 188 (AD) at 190F.
[33]
1963 (1) SA 692
(AD) at p. 694 .
[34]
(608/10)
[2011] ZASCA 86
(27 May 2011).
[35]
see S
v Nkosi
2016 (1) SACR 301
(SCA); S
v Nhlapo and
Another
1981 (2) SA 744
at 751 A-C and
Mapangose and Others v
State
unreported full court judgment by Tolmay J, No A150/10, GP
on 2 March 2012)
[36]
1988
(1) SA 868
(A) at 894C- 901H.
[37]
1989 (1) SA 687
(A) at 7051- 7 06C .
[38]
see S v Skweyiya
[1984] ZASCA 96
;
1984 (4) SA 712
(A); S v Madonsela
2012 (2) SACR
456
(GSJ); S v Mavinini
2009 (1)
SACR 523
(SCA); and Mothwa v The
State
2016 (2) SACR 489
(at SCA)