S v Matsitela and Others (78/2017) [2018] ZAFSHC 135 (13 September 2018)

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[2018] ZAFSHC 135
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S v Matsitela and Others (78/2017) [2018] ZAFSHC 135 (13 September 2018)

IN THE HIGH COURT OF SOUTH
AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 78/2017
In
the matter between:
THE
STATE
and
MALOME
ALFRED MATSITELA
1st
Accused
STEVEN
LANGA
2nd
Accused
AMOS
NGUBENI
3rd
Accused
ANDRIES
MKHUMBUZA
4th
Accused
HEARD
ON:
16
APRIL – 4  MAY 2018 & 3 – 11 SEPTEMBER 2018
JUDGMENT
BY:
DAFFUE,
J
DELIVERED
ON:
12
and 13 SEPTEMBER 2018
I
INTRODUCTION
[1]
This case turns in essence around copper theft which is prevalent in
the Free State Province and apparently also in other parts
of South
Africa if the law reports and latest legislation are considered.
The State has resolved to institute prosecution
in terms of the
Prevention of Corrupt Activities Act, 121 of 1998 (“POCA”),
over and above the several counts in relation
to the predicate
offence of theft.  More will be said about this later.  The
written authorisations of the National Director
of Prosecutions (“the
NDPP”) in terms of s 2(4) read with s 2(1)(f) and 2(1)(e) were
handed in without objection as
Exhibits “A” and “B”
respectively.
II
THE
PARTIES
[2]
Four accused persons have been charged in respect of several offences
as set out in the next paragraph.  The accused are
Messrs Malome
Alfred Matsitela (accused1), Steven Langa (accused 2), Amos Ngubeni
(accused 3) and Andries Mkhumbuza (accused 4).
The State is
represented by Advv DJ Pretorius and J Potgieter whilst the accused
are represented by Mr P van der Merwe.
III
THE
CHARGES
[3]
I do not intend to read out the indictment and what follows is merely
a summary of the allegations.
Count
1
:
Accused 1 is accused of managing an enterprise through a pattern of
racketeering activities as defined in s 2(1)(f) of POCA
during the
period January 2014 to March 2014 in the districts of Ficksburg and
Senekal, the activities being those related to counts
3 to 8, to wit
theft.
Count
2
:
All four accused are indicted in accordance with s 2(1)(e) of POCA
for conducting or participating in the activities of an enterprise

through a pattern of racketeering activities during the same period
and in the districts as mentioned
supra.
Counts
3 to 6:
These are counts of theft allegedly committed on or about 10 –
11 January 2014 on the farm Valuta in the district of
Ficksburg, 23
January 2014 near the Meulspruit Dam in the district of Ficksburg, 23
– 24 January 2014 on the farm Valuta
in the district of
Ficksburg and between 24 and 26 March 2014 in the district of
Senekal.  Copper cable of Telkom has allegedly
been stolen,
except in the case of count 4 where it turned out during the evidence
that an optic fibre cable was stolen.
All four accused are
arraigned in respect of these counts.
Counts
7 and 8:
Accused
1, 3 and 4 are charged with theft allegedly committed on or about 24
– 26 March 2014 and 1 April 2014.  In the
first case power
cables of the Senekal Municipality were stolen and in the second
instance, certain hardware consisting of bolts,
nuts and plates, etc.
of Transnet were stolen at the Senekal railway station.
Counts
9 and 10:
Accused 3 and 4 are the only accused persons arraigned in respect of
these counts.  It is alleged in count 9 that on
or about 24 to
26 March 2016 and near Glen in the Bloemfontein district Transnet
power cables forming part of essential infrastructure
as defined in
the Criminal Matters Amendment Act, 18 of 2015 (“the 2015 Act”)
which came into operation on 1 June 2016,
were stolen.  Count 10
deals with the same factual situation, save insofar as it is alleged,
relying on s 3 of the 2015 Act,
that accused 3 and 4 are also guilty
of tampering, damaging and/or destroying essential infrastructure.
IV
THE
PLEAS
[4]
All four accused pleaded not guilty and tendered no plea
explanation.  There was some confusion at this stage and I got

the impression that accused 2 and 3 wanted to place their defences on
record.  However Mr Van der Merwe informed me after
an
adjournment that the matter was discussed and resolved.
Therefore all elements of the various offences were placed in

dispute.  Mr Van der Merwe also confirmed that the accused were
informed of the minimum sentences applicable in the event
of
convictions in respect of counts 1, 2, 7, 9 and 10.
V
SUMMARY OF THE
EVIDENCE
[5]
Although no admissions were made at the onset, Mr Van der Merwe did
not waste time to proceed on lengthy and unnecessary
cross-examination
of several witnesses that were called to prove that
copper cable, FCC cables, an optic fibre cable and certain Transnet
properties
were stolen.  It is apparent that none of the
witnesses called in this regard could present factual bases for any
estimates
made pertaining to the costs of material and/or damages
sustained.
[6]
The first witness was Mr M E Motaung, a technician of Telkom
stationed at Ficksburg.  He explained that dissatisfied landline

customers normally contact the Telkom call centre and that Telkom
technicians respond accordingly by repairing any faults.
On 11
January 2014 at 11h30 he went out to the farm Valuta in the Ficksburg
district.  He found that approximately 3 kilometres
of an
overhead copper wire (a telephone line) had been cut and removed.
He estimated the damage to be R8 000.00.
This was not an
isolated incident as many similar offences occurred in the district
and to his knowledge the thieves were not apprehended.
The
offence caused all customers on the particular telephone line to be
unable to make outgoing or receive incoming landline calls.
He could
not repair the line because of the magnitude of the matter and
outside contractors had to be contracted.
[7]
Mr R E Mofokeng was the next witness.  He is a Telkom technician
stationed in Bethlehem.  On 23 January 2014 and between
22h00
and midnight when he was on stand-by duty he received a call from
colleagues who monitored the Telkom system on a 24/7 basis.
He
went to the problem area on the Ficksburg/Clocolan road, about 3.3
kilometres from Ficksburg in the vicinity of the Meulspruit
Dam.
The insulated optic fibre overhead cable was cut and a piece of about
1 000 metres thereof was removed.
These optic fibre cables
are different from copper wires used for normal telephone connection
as it is used for communication between
banks, ATM’s, and
cellphones as well as for normal landline communication across the
borders of the country.  The problem
was fixed during that same
morning.  Telkom encountered numerous similar problems and the
incident was not an isolated case.
[8]
Mr J A Bester, another Telkom technician stationed at Marquard,
testified about copper theft,
i.e.
the
removal of overhead copper wires in the Ficksburg district.  He
usually starts to work at 07h30 where after a meeting follows.

After the meeting he normally consults his computer.  On 24
January 2014 at approximately 08h00 he found that a call had been

logged earlier in respect of a faulty telephone line. He went to the
scene.  It turned out to be on the same line, a part
of which
was stolen on 11 January 2014, a few days earlier.  Again, the
farm Valuta was the thieves’ target.  This
time about 5
kilometres of an overhead copper wire was cut and stolen.  He
estimated the loss at R14 000. He could not
repair the damage
and the assistance of outside contractors was required. A process had
to be followed in this regard, once the
incident was registered on
Telkom’s TBI system.
[9]
Mr S G van Niekerk, a Telkom technician stationed at Senekal,
testified next.  On 26 March 2014 at about 08h00 he detected

theft of overhead copper wires (the telephone line) on the
Senekal/Marquard road.  Two pairs of open copper wires over 21

spans – each span 45 metres long - were found to be missing.
Two days earlier, on 24 January 2014, he detected a fault
on
the same line which he repaired at about 16h30.  About 38
customers could be serviced by the line.  As a result of
the
magnitude of the theft it was not possible for one person to replace
and repair the wires.
[10]
Mr P J van den Berg, a specialist investigator in the employ of
Telkom testified pertaining to the contents of a computer generated

document known as a TBI, which was handed in as Exhibit “C”.
He was requested to investigate four incidents,
i.e.
those
relating to counts 3, 4, 5 and 6.  He merely confirmed the
information contained in the document such as the time of
incidents,
the dates on which the matters were resolved, if at all, and the
damages suffered.  The total costs in respect
of count 3 were
R16 999.89 which included R5 585.40 for material.
This differs substantially from the amount of
R50585.40 mentioned in
the indictment.   He explained that the costs of repairs in
respect of the optic fibre cable theft
– count 4 – were
R15 292.59 which included the costs of material in the amount of
R8 538.74 which is the
amount stated in the indictment.  He
contradicted Mr Mofokeng about the exact location where the optic
fibre cable was cut,
but it is not an issue as he explained based on
Exhibit “C” that the network was affected.  He
testified that
optic fibre cables have to be repaired within 24 hours
as Telkom may face penalties of up to R3m from cellphone companies
such
as Vodacom and MTN.  He explained that the network provides
communication for banks, ATMs and cellphone companies.  It
also
provides international landline communication.  The witness was
confused as to the date of the second theft on the farm
Valuta –
the date on the TBI appearing to be the same as the first theft –
which could not be correct.  Mr Rudman
who testified later,
explained why the date of 11 January 2014 was also used for the
second theft.  He confirmed that Telkom
decided not to replace
copper wires on the particular line, but that the costs for Telkom
was recorded to be R2 000, being
transportation and inspection
fees.  The costs of material were included in the contractor’s
quotation, although the
work was not done. The witness also testified
that the copper wires were not replaced in the Senekal district –
count 6 –
due to economic considerations.  In all four
cases the incidents have been reported to SAPS as is evident from the
CAS numbers
appearing on Exhibit “C”.  The witness
made it clear in cross-examination that he cannot testify about costs
of
material as it did not fall within his field of expertise.
[11]
Mr C Rudman was called to testify in his capacity as Operations
Manager of Telkom.  He testified in respect of counts
3, 5 and
6,
i.e.
the
copper wire theft.  He explained how Exhibit “C” was
generated on the computer system of Telkom.  He also
confirmed
that customer queries are received by Telkom’s call centre and
that these are then recorded on the system.
The second theft on
the line at Valuta farm occurred before repairs could be undertaken
in respect of the first theft.  Therefore
the incident date of
the first theft was also recorded as that of the second theft.
It is clear from the CAS numbers that
the two incidents were reported
to SAPS on different dates. In cross-examination he was requested to
explain the differences in
the pricing of copper wires.  He
testified that wires may differ in thickness and this will have an
effect on price.
However, as he was not responsible for
obtaining of quotations he was not prepared to comment on the amounts
set out in Exhibit
“C”.
[12]
Mr H J Klem, an electrician in the employ of the Senekal
Municipality, testified in respect of damages found at the
Syferfontein
waterworks of the Senekal Municipality.  It is one
of two sources of water for the Senekal people.  He was called
out
to the site on 26 March 2014.  He found that about 50 metres
of electrical cables were cut and removed, that the transformer
was
damaged to remove cable from it and that certain panels were damaged
as well.  The electrical cables are 70 square mm
in width
according to him, or as he mentioned, as thick as four of his
fingers.  The cables are made of copper and are insulated.

As a result of the theft, water could not be pumped and supplied to
the Senekal community.  It took a few days to replace
the cables
and transformer and to repair the electrical installation.   Mr
Klem visited the works on 19 March 2014 for
the last time before the
26
th
.
However, employees are on duty 24/7 and he was of the view that there
were no problems on or before 25 March 2014.
[13]
Mr M I Sithole, a constable in the employ of SAPS testified about a
road block held from 01h00 on the night of 24/25 March
2014 and his
meeting with accused 3, Mr Amos Ngubeni.  The road block was
held about 3 kilometres outside Senekal on the way
to Winburg.
At that position the N5 forms an intersection with the Ventersburg /
Marquard road.  The road block was
set up 100 metres from this
intersection on the road to Marquard.  At 02h15 a white bakkie
travelling from Ventersburg intended
to cross the N5 towards
Marquard, but at the last moment turned right in the direction of
Winburg / Bloemfontein.  He regarded
the action as suspicious
and followed the vehicle which he managed to stop after about 10
kilometres.  He requested the driver’s
licence and
established that he was Mr A Ngubeni, accuced 3.  He questioned
the driver who initially informed him that he
was on his way to
Bloemfontein to fetch a certain Bisa.  When he pointed out that
he should have remained on the N1, the shortest
route to
Bloemfontein, accused 3 mentioned that he was from Johannesburg and
not familiar with the surroundings.  The witness
also arranged
for the bakkie’s details to be fed into the computer system to
establish the owner’s particulars as accused
3 could not
assist.  Later on accused 3 changed his version and said that
Bisa had to be picked up in Winburg.  Accused
3 provided Bisa’s
cellphone number to the witness and he dialled the number.  A
female responded, but she did not know
Bisa or accused 3.
Accused 3 also gave a number to the witness of the person who
instructed him to fetch Bisa, being one
Sifiso.  Sifiso
confirmed that he knew accused 3, but never instructed him to fetch
Bisa.  Eventually the witness received
the details of the owner
of the vehicle, a certain Solomon.  This person confirmed his
ownership, but alleged that the vehicle
was in the care of Steven
Langa and that it was supposed to be at the O R Tambo airport.
Although hearsay evidence was tendered,
Mr Van der Merwe did not
object initially, but only when the witness referred to Steven
Langa.  I decided to allow the hearsay
and indicated that
reasons would be given in my judgment at the end of the case.
The witness detained accused 3 and arranged
for the bakkie to be
taken to the Senekal police station, but does not know what occurred
thereafter.  This was at about 05h00.
It transpired during
cross-examination that accused 3 and the bakkie were released later
that same day.
[14]
Accused 3’s version as put to constable Sithole makes
interesting reading.  According to him he picked up a female
and
her two children at Ventersburg who indicated that she needed
transport to Senekal.  This was then the reason for the
detour.
This was vehemently denied by the witness who testified that the
bakkie would have turned left at the said intersection
in order to
drop the passengers in Senekal some 3 kilometres from the
intersection, but that this did not happen. According to
accused 3 he
did not know Bisa, but that he would tow his vehicle back to
Johannesburg on the instructions of Sifiso.  He
would make
telephonic contact with Bisa only when he
“
get
near Bloemfontein.”
[15]
Mr K A Posholi, a security official in the employ of Transnet,
testified about count 8, to wit the missing goods at the Senekal

railway station.  He testified that during his patrolling duties
on 1 April 2014 he observed some missing items inter alia
fish
plates, nuts and bolts.  The list with missing items was handed
in as Exhibit “D” without any objection.
The fish plates
are
“
solid steel
plates bolted together in order to fasten the railway line”
.
If these fish plates are removed, trains using the railway line may
derail. During cross-examination he admitted that he could
not say
whether the items were stolen a day or three days before his
observation. When he patrolled the area earlier, that is five
days
before 1 April 2014, everything was still in order as stated in his
re-examination.
[16]
Mr MG Motsumi testified next. He is employed by Transnet in
Bloemfontein and has been so employed in this capacity as traction

linesman for 14 years. His duties include the construction and
maintenance of the electrical overhead lines of Transnet. He was

shown a photo album consisting of 98 photos which was handed in by
agreement as Exhibit “E”.  On 28 September
2016 he
drove past Glen on his way to Bloemfontein when he observed that some
FCC cables were cut. FCC stands for Feeder Catenary
Contact.
The purpose of the FCC cables is to feed electricity from the feeder
to the contact wires. On 29 September 2016
he and colleagues went
back to Glen and during their investigations they found more FCC
cables were cut off at a different section
of the railway line.
This railway line is the main railway line between Gauteng and
Bloemfontein which leads to Kimberley/Cape
Town and also to East
London/Port Elizabeth. At least 60 FCC cables were cut off and
stolen. The witness explained that the feeder
line is made of
aluminium whilst the catenary and contact lines are made of copper.
He gave an explanation of the negative consequences
that will arise
if trains use the particular railway line in the absence of FCC
cables.  Heavy haulage trains, especially,
will be slowed down
and even caused to stop due to lack of proper electricity supply. It
is also possible that trains may catch
fire which will obviously have
serious detrimental consequences for passengers and transported
goods.
[17]
The witness was cross-examined in respect of the time when the matter
was reported to the police as well as the value provided
to the
police.  The value stated in the docket differs from the value
mentioned in his evidence in chief. He confirmed that
in these
instances no alarms went off reporting theft of the cables as could
be expected. To the best of his knowledge no trains
were impacted as
a result of the stolen cables and no delays occurred. In
re-examination the witness rectified his evidence and
stated that no
alarm would go off in the event of the cutting of the FCC cables.
[18]
Mr JA Kritzinger, an employee of Combined Private Investigations
(“CPI”), was the State’s 11
th
witness.  He is an area manager in Gauteng with his office in
Springs in the East Rand. He confirmed that CPI was contracted
by
Transnet, Eskom and Telkom to investigate copper cable theft. He
received information from his informer on 29 January 2017 pertaining

to two phone calls received from a person that wanted to sell copper.
The seller was identified as Amos Ngubeni whose name was
familiar to
the witness as he was earlier identified as one of the syndicate
leaders in respect of copper theft. He recorded the
suspect’s
cellphone number which was listed on the informer’s phonebook
as 0784624320. The witness reacted on information
that the suspect
would be in the Balfour area on 2 February 2017. The description of
the suspect’s vehicle, to wit a silver
Toyota Tazz with a GP
registration number (which the witness could not remember when he
testified), was provided to him.
I emphasise that throughout
this judgment I shall often refer to the last four digits of
cellphone numbers for ease of reference
as the legal representatives
and witnesses did the same.  I shall also refer to cellphones
being Rica’d, it being the
popular description of a cellphone
with simcard having been registered in the name of an identified user
in terms of the Regulation
of Interception of Communications and
Provision of Communication-related Information Act, 70 of 2002
(“RICA”).
[19]
The witness acted upon the information received whereupon he came
across the particular motor vehicle and stopped it.
Both he and
the driver thereof disembarked. He introduced himself to the driver
who mentioned that he was Amos Ngubeni. The witness
pointed accused 3
out as Amos Ngubeni.  At that stage he was aware that a warrant
of arrest had been issued for accused 3
in respect of copper cable
theft at Glen in the Free State. The witness noticed motor vehicle
tubes, strings and a bag in the boot
of the suspect’s vehicle.
He explained that these tubes are cut into pieces of different
lengths, 2 to 3 cm in width. A saw
or bolt cutter is then fastened to
the tubes and brandring with a piece of string. In this manner, and
by pulling the strings,
the FCC wires can be cut or sawn off. He
identified similar pieces of tube on photos 26 and 27 of Exhibit “E”.
He also
pointed out on photo 25 a part of the FCC cable that remained
after it had been cut off. He explained with reference to photo 15
by
using a red pen how an FCC cable is fastened to the overhead
electrical lines, indicating two half circles pointing in different

directions. The witness found a cellphone with number 0784624320 on
accused 3. He took accused 3 and his cellphone and motor vehicle
to
Kroonstad and handed him and his property over to Mr Doubles van
Deventer of CPI, Kroonstad.
[20]
On 21 February 2017 the witness went to an extension of Daveyton
between Springs and Benoni where he located accused 3’s
wife at
the address provided by the accused. She confirmed that accused 3 was
staying there. The cellphone found on accused 3 was
Rica’d in
the name of accused 3’s wife.  She had two phones and
accused 3’s number was stored on her phone
under the name
“Lovey.”
[21]
The witness also explained that the purpose of the FCC cables was to
provide more power from the feeder line to the contact
line.
These cables are particularly relevant when heavy freight such as
coal is transported by electrical trains.  One
finds these
cables on Transnet’s Business Units, its more lucrative
routes.  When FCC cables are missing, especially
on inclines,
the contact lines are burnt as they cannot handle the freight.
The train driver would not know this in normal
circumstances, but the
train will automatically come to a standstill.  It takes
Transnet between three and twelve hours to
repair depending on the
length of the contact line demolished. The witness also explained
that the train’s pantograph makes
contact with the contact line
and this provides momentum to move forward.  Penalties are
imposed by Transnet’s customers
for late deliveries. FCC cables
are stolen countrywide, causing serious problems. These cables
consist of solid copper. FCC cables
are not connected to Transnet’s
alarm system, the reason being that if a FCC cable is cut, there is
still power on all three
lines. Theft is not detected immediately in
most cases and consequently FCC cables are popular to steal.
[22]
Mr Van der Merwe conceded that accused 3 was stopped whilst driving
his Toyota Tazz. However he denied that the items allegedly
found in
the car belonged to him. On accused 3’s version he was taken
away to an office in Springs and when they returned
to the vehicle,
the witness pointed out the bag and other items inside his vehicle.
He also insisted that he was assaulted at the
office and at his
vehicle.  That night he had to sleep on the back of a bakkie
parked at a filling station in Balfour and
was only taken to
Kroonstad the next morning. The witness denied these allegations. It
was also put to the witness that a cellphone
was confiscated from
accused 3, but that it was a phone with a different number than the
one testified to by the witness.
This version was denied. It
was put to the witness that accused 3 denied any liability and
claimed that he was falsely accused.
However it was admitted that
accused 3’s wife had two cellphones, but the phone confiscated
from accused 3 was his phone.
I just want to record that accused 1,
who was taking notes right through the trial, joined in the
discussion with accused 2 and
3 when Mr Van der Merwe requested time
to consult with accused 3 in court to obtain any further
instructions, which were not forthcoming.
[23]
Mr J Koekemoer, also employed at CPI stationed at Springs, explained
that they were on the lookout for one Samuel Ngwenya
in
respect of an outstanding warrant. He was apprehended whilst being a
passenger in a motor vehicle on the R29 in the Babsfontein
area.
Mr Ngwenya and two other persons, the driver of the vehicle, one
Matthew, also known as Xolane, and Andries Mkhumbuza
who was pointed
out to be accused 4 in court, were taken to the Sundra police
station. Relevant information was obtained insofar
as a data base is
kept of all suspects related to copper theft. The information on
accused 4’s phone book was written down
as well as his name,
address, the IMEI number of his cellphone and his cellphone number,
to wit […].  Exhibit “F”
containing the
information was thereupon finally admitted.  Accused 4 was not
arrested, but allowed to leave hereafter. The
witness mentioned that
he established later that accused 3 and 4 are brothers.  The
witness also confirmed that he was involved
in the arrest of Alfred
Matsitela, accused 1, the owner of Malvern Scrap Metals in Germiston.
[24]
During cross-examination the witness was questioned about CPI’s
powers of arrest and interrogation. He was called back
on Monday, 30
April 2018 to give evidence in respect of a different matter.
He testified then that on 17 May 2017 he and
members of the East Rand
flying squad arrested Mr Lawrence Mavumba for whom a warrant of
arrest had been issued. He also obtained
his personal details and
recorded the information contained in the phonebook of this person’s
cellphone.  The details
appear on Exhibit “R”. He
pointed out two inscriptions,
i.e
of Andries Mkhumbuza with
cellphone number […] and Mkhumbuza cellphone number […].
After further investigation
he found out that the last cellphone
number belonged to accused 3, Amos Mkhumbuza, who is also known to
him as Amos Ngubeni. He
pointed accused 3 out in court.  At the
time when he prepared the document, he was aware of the existence of
Andries and Amos
Mkhumbuza.  He tried to arrest accused 4 on
several occasions, but could never find him at home.
[25]
It was put to the witness that accused 4 insisted that neither of the
two cellphones as recorded by the witness belong to him.
It was also
put to the witness that accused 4 and one Xolani were in the vehicle
on their way home when they picked up a stranger.
The witness denied
this and said that they were from their homes when they were
apprehended. It was also put to the witness that
they were taken to
the police station without their consent which was denied.  The
witness explained that, after the cellphones
were taken and all
relevant information recorded, accused 4 was released as there was no
evidence against him and Xolani at that
time. Mr Van der Merwe
informed the court that accused 4 remembers most of the names on
Exhibit “F”, that his phone
was indeed taken and handed
back to him as the witness testified and therefore he could not
object to Exhibit “F” which
contains the information
taken down as testified to by the witness.
[26]
Mr RC Botha, an area manager of CPI stationed in Pretoria, testified
about the arrest of accused 4 on Wednesday, 2 August 2017
near
Nelspruit. The arrest took place after information was received of
theft taking place at the MMC railway line. The perpetrators
ran
away. The witness called in the assistance of the police who arranged
for the search of all vehicles intending to pass through
the toll
gate near Machadodorp. Accused 4 was found hiding in the cab of a
truck. His Nokia cell phone was confiscated. Accused
4 was injured.
He had sustained a cut to his nose and was bleeding. The cell phone
number was recorded as […]. Mr Doubles
van Deventer fetched
accused 4 later. It was put to the witness that accused 4 was busy
hitchhiking when he was arrested whilst
walking along the road, but
this was denied.  He conceded that his phone was confiscated and
the phone number correctly recorded.
However he alleged that he was
assaulted in that he was hit with the butt of a rifle in the face,
causing an injury to his left
eye. The witness was cross-examined in
respect of the processes adopted by the witness and CPI instead of
allowing the police to
affect arrest and carry on with
investigations. The witness testified that the police was not
prepared to assist whilst accused
4 was an illegal immigrant whom
they failed to arrest in the past. It was put to the witness that the
injury to accused 4’s
left eye was caused during his arrest
which was denied.
[27]
W/O PL Jooste, a detective of Senekal, obtained a warrant of arrest
for accused 1 as well as a search warrant.  On 23
October 2015
he went to accused 1’s business premises at Malvern Scrap Metal
in Germiston where he seized  a white bakkie,
accused 1’s
cellphone as well as another cellphone in possession of one of his
employees, several registers as well as copper
found on the bakkie.
Accused 1 and the two employees were arrested.  Accused 1’s
cellphone number is […] and
the number of the other cellphone
is […].  Another cellphone was attached but that number
is irrelevant for purposes
hereof.  He requested cellphone data
of the relevant cellphones in terms of s 205.  One of the
registers which he seized
was identified as a counter book, handed in
as Exhibit “G”.  He also obtained documentation in
respect of accused
1’s licence to trade which was handed in as
Exhibit “H”.  Exhibit “J” was handed
in.  It
contains the front pages of the relevant dockets at that
stage.  The witness admitted in cross-examination that no stolen
items were found on the premises.
[28]
Mr GB van Deventer (widely known as Doubles) is the Area Manager of
CPI stationed at Kroonstad.  He also referred to CPI’s

mandate to investigate copper theft.  CPI worked closely with
SAPS headquarters who registered a project in order to apprehend

copper thieves.  For all intents and purposes he can be regarded
as the Investigating Officer although it is accepted that
that role
is played by a member of SAPS.  The witness prepared a
professional document, based on cellphone records received
from
cellphone companies to show the linkages between the various accused
persons and their different cellphones and/or simcards.
He
testified that copper theft increased since 2011, but since the
arrest of the accused he was not aware of any copper theft in
his
area.  He explained that CPI identified a big group of 22
suspects who often worked in smaller groups in the different

provinces.
[29]
Accused 2 and others were arrested on 10 February 2015 and their
cases were finalised in the High Court sitting at Kroonstad
later.
Accused 1 was not arrested at that stage as they believed that the
project should be allowed to carry on for a while
in order to
apprehend more suspects.  Accused 1 was ultimately arrested on
23 October 2015 and charged.  His case was
also finalised in the
High Court sitting at Kroonstad.
[30]
Accused 3 and 4 were difficult to arrest.  Eventually, and based
on information in September 2016 in respect of the theft
of FCC
cables near Glen, they could connect these two with that offence as
by then they already had all their cellphone details.

Application was made for s 205 orders by the IO, Sergeant Pheko of
Glen.  All relevant data obtained was sent to SAPS’

Technical Unit who forwarded same also to the witness. Colonel Maree
also applied for a s 205 order for the period 2013/2014 relating
to
accused 2, 3 and 4 in respect of incidents in the Northern Cape.
The witness received this data as well.  Similarly
data was
obtained by W/O Jooste of Senekal in respect of accused 1 which was
available during his arrest in 2015.  Warrants
of arrest were
obtained in respect of accused 3 and 4.  Amos Ngubeni, accused
3, was eventually arrested in Gauteng.
This accused, his
cellphone and vehicle were brought to the witness in Kroonstad.
Photographs were taken of the relevant
items and the accused.
Accused 3 was handed over to Sergeant Pheko.
[31]
No doubt, the witness obtained expert skills about cellphones through
work experience.  His professional approach to cellphone
records
in order to establish linkages between various phone users and his
understanding of an Excell program in order to draft,
understand,
analyse and explain the different spread sheets is superb and cannot
be faulted.  Obviously, one must be mindful
of the fact that if
the core, all, or some of, the information fed into the system is
incorrect, the whole analysis becomes a worthless
exercise.  I
shall return to this later.
[32]
Accused 4 was arrested on 2 August 2017.   The cellphone
found in his possession at the time did not contain relevant

information.  However relevant information was obtained earlier
in respect of a cellphone used by him.  The accused was

photographed and the witness mentioned the injury to his eye.
He was handed over to SAPS, Glen.
[33]
The witness was present when accused 1 was arrested by W/O Jooste on
23 October 2015.  Two cell phones, Rica’d in
his name,
were found and attached together with all registers.  All
details on the phones were recorded where after these
were sent to
the SAPS, Technical Unit.  The witness testified about the
counter book, Exhibit “G” which he referred
to as one of
accused 1’s
“
aankoopregisters
”
(purchase registers).
The green flags indicate accused 2,
i.e.
Steven Langa’s involvement pertaining to his sales of copper to
accused 1.  All inscriptions containing orange flags
are
irrelevant for this case.  The purple flags indicate
transactions where money was subtracted from the purchase price to

cater for the transportation of goods.  Two transactions were
dealt with concluded on 12 January 2014 and 26 January 2014

respectively.  1A copper was purchased from one Langa; 298.5 kg
in the first instance at a price of R16 417.50 and 309
kg in the
second transaction at a price of R16 995.00. In a few instances,
on 5 February 2014, 15 February 2014, 9 April 2014
and 17 April 2014
transport costs were deducted from the purchase price agreed upon.
[34]
Exhibit “P”, consisting of four lever arch files,
containing proof of cellphone communication between the various

phones and alleged linkages between the four accused was handed in
and discussed by the witness during his testimony.  I prefer
to
deal with this aspect during the evaluation of the evidence.
Suffice to say at this stage that the witness showed how
the relevant
cellphones were used in respect of the various crime scenes with
reference to time and date, the area from where calls
were made
(where the particular cellphone user found himself) and which phones
communicated with any other phones at any given
time.  It is
also indicated how the phones picked up different cellphone towers as
the users thereof travelled from Gauteng
to either Ficksburg or
Senekal and back.  The witness confirmed that Exhibit “K”
shows the Rica documentation
together with the accused persons’
cellphone numbers as well as extracts from phone books and some of
the data analysis and
linkages between the accused.  I wish to
refer to Exhibit “K” page 2. The details were admitted in
Exhibit “S”
referred to later, save for the information
pertaining to phone C – number 1020 - and the phones
confiscated from accused
3 and 4. In his summary the witness
indicated the links between the CAS numbers, the various accused and
the different crime scenes.
[35]
Exhibit “L” was identified as the cellphone towers.
The witness confirmed that all information about the
cellphone towers
is stored on his computer.  He prepared the various maps based
on co-ordinates received from clients in respect
of the different
crime scenes.  There being no objection, the document containing
the maps was handed in as Exhibit “M”.
The witness
explained the maps for in case the reader thereof needed some
education.  The maps speak for themselves.
It may just be
stated that the two closest towers to Malvern Scrap Metals that
provide cellphone coverage in that area are the
Simmerfield and
Wychwood towers.  Obviously, as submitted by Mr Van der Merwe,
it does not mean that if a cellphone picks
up any of these towers, it
may be accepted that the user was at accused 1’s business
premises.  There are numerous business
and other premises within
the area, including other scrap metal dealers.  The photographs
relating to accused 3, particularly
his cellphone, the IMEI and
cellphone numbers thereof as depicted on the phone and his vehicle
with the items found in the vehicle,
were put in an album and handed
in as Exhibit “N”.  It needs to be mentioned that Mr
Van Deventer had access to
the phonebook of a known copper thief,
Charles Sithole, who according to him is at present standing trial in
a different court
and who is part of the syndicate to which the
accused persons allegedly belong.  He wrote down the names and
numbers contained
in that phone book during Sithole’s arrest.
The number 1020 was stored therein under the name Elias Navara which

the witness ascribed to accused 1, the number that was most often
used to communicate with syndicate members.
[36]
Colonel Maree from the detective branch in Kakamas, Northern Cape
testified about his involvement with the investigation of
copper
theft in the Kakamas, Namakwaland area during 2013.  Several
telephone lines over a huge area have been stolen and
Telkom just
refused to install new lines, causing a serious communication problem
amongst many farmers, many of whom cannot make
use of cellphone
communication due to the remoteness of the area. The witness compiled
a data basis and profiles of suspects.
He knows accused 2 and 4
and arrested accused 2 in the past.  He met accused 4 at the
Kenhardt police station after a Corsa
bakkie had been stopped in a
police road block and the driver and passenger had run away.
Later accused 4 and another person
arrived at the police station to
collect the bakkie.  The colonel consulted both and obtained
personal information from them.
Accused 4’s information
was written down on a piece of paper and Exhibit “Q” was
handed in without objection.
Accused 4’s cellphone number
was recorded in the document as […].  This indeed
belonged to the cellphone which
accused 4 had in his possession that
day.  The first number in the phone book belonged to Amos
Ngubeni, accused 3, and that
number is […].  He
telephonically traced accused 3 through a deposit slip obtained
during his investigations who confirmed
that the cellphone number was
his.  He obtained an order in terms of s 205 as well as a
warrant for his arrest.  On 27
February 2014 he arranged to meet
accused 3 in Gauteng, but the accused never turned up.  The
witness handed the cellphone
data obtained by him to Mr Van
Deventer.
[37]
In cross-examination it was put to the witness that accused 4’s
date of birth is 12 June 1974 and not 1974 -01-06 as
written down on
Exhibit “Q”.   The witness insisted that he
wrote down what accused 4 informed him.
The accused did not
have an identity number.  It was also put to the witness that
accused 4 indeed attended the police station,
but that he remained
outside when his colleague, Joseph Maseko, whom he accompanied to
collect the Corsa, and the witness had a
discussion inside the police
station.  The witness denied this and even explained how they
were seated in the office of the
station commander.  He also
took photographs of both persons with his cellphone.  It was
conceded that accused 4 wrote
down his name on Exhibit “Q”,
but denied that his cellphone was ever handed to the witness.
The witness stuck
to his version.  Accused 4 could not say
whether Mr Maseko did not perhaps give his cellphone number to the
witness, but the
colonel was adamant that accused 4 personally gave
the cellphone to him.  The witness also explained that he had
accused 3’s
number on his data base and he remembered the last
four digits thereof,
i.e.
4776 and could immediately make the connection.  The s 205
application was in respect of accused 3’s cellphone number.
[38]
Mr E Mchunu was the State’s last witness.  He is a
sentenced prisoner, having pleaded guilty in the High Court sitting

at Kroonstad.  He knows accused 1 well and confirmed that he was
also referred to as Navara.  The accused had a Navara
vehicle.
He was part of a group that worked together in order to steal copper
in the Free State area.  He provided transportation
to the
people whose duty it was to cut and remove copper cables where after
he transported the copper to accused 1’s business
premises, to
wit Malvern Scrap Metal.  He was always paid by accused 1
personally, initially by cheque and/or cash and later
even by
deposits into his bank account.  He even knows that accused 1
stayed in a security complex as accused 1 took him there
several
times for tea which the witness found very refreshing.  He
explained that he usually left the Free State between 03h30
and 04h00
and arrived at accused 1’s business premises between 06h00 and
07h00.  One of the copper thieves took him
to the business
premises the first time and although he did not know the street
address, he thereafter knew how to get there.
[39]
The witness confirmed that he met Elias who worked for accused 1, but
that he and accused 1 parted ways after some time.
He knows
that others, Mthembu and Ndlovu, were employed by accused 1.
Elias helped with offloading of copper as the others
did after he had
left.  The employees would weigh the copper and accused 1 would
come in later to pay him.  Nobody else
paid him at any stage.
According to him he would contact accused 1 personally when they were
on their way to his business.
He did not do business with other
scrap metal owners.  In cross-examination the witness was
accused of making up a story and
it was even put to him that accused
1 does not know him.  He vehemently denied this.  He
admitted that he pleaded guilty
as he was indeed guilty.  He
also testified in the Kroonstad trial against other accused.
When he was confronted about
alleged lack of communication between
him and accused 1, he presented a copy of his phone book.
Accused 1’s name was
stored on his phonebook under the name
Boss Malvern with the last digits of the number to be 6456.  He
also referred to another
contact number that is irrelevant in this
case.  It was at this stage that the witness brought up the
invitations for tea
at accused 1’s home.  In
re-examination he admitted standing trial in Kroonstad with accused 1
and his two employees,
Mthembu and Ndlovu.  He also referred to
accused 1’s home situated in a security complex, an aspect that
accused 1 would
later confirm in his testimony.
[40]
The accused made several written admissions and the document was
handed in as Exhibit “S”.  These admissions
relate
to the correctness of cellphone data requested and received from
cellphone companies in respect of eight cellphone numbers
for the
periods 1 January 2014 to 30 April 2014 and 1 to 30 September 2016.
The correctness and authenticity of the cellphone
data contained in
Exhibit “P”, the four lever arch files, were admitted.
The locations of the cellphone towers
as stated in Exhibit “P”
were admitted.  The Rica particulars regarding ownership of the
particular phones of
accused 1 and 2 as well as that of accused 3’s
wife were admitted.  It was also admitted that accused 3 and 4
are biological
brothers.  The admissions were recorded in terms
of s 220 of the CPA where after the State closed its case.
[41]
Mr Malume Alfred Matsitela, accused 1, testified in his defence.
As could be expected, he stated that accused 2, 3 and
4 were unknown
to him before the trial.  He came to know them when they
appeared together in these proceedings.  He is
43 years old,
married and has four children. He is the owner of Malvern Scrap
Metals which he conducted from 2003 to 2015.
He had three
employees, Elias Apane, who was his bookkeeper and two others, to wit
Nthemu and James Ndlovu who assisted with downloading
of scrap metal
and weighing thereof.  According to the accused he would
withdraw cash from the bank which he handed to Mr
Apane as his
bookkeeper who was responsible for paying sellers of scrap metal.
He was also the person that completed the
counter books, one of which
is Exhibit “G” before the court.  The accused never
met the last State witness, Mr
Mchunu before seeing him for the first
time at the High Court sitting in Kroonstad.  He therefore
denied that he ever bought
scrap metal from him or that he made
payments to him in whatever form.
[42]
According to the accused he never bought scrap metal from anybody,
unless there was full compliance with the provisions of
the Second
Hand Goods Act. I presume he referred to the details to be contained
in registers as provided for in s 21 of that Act.
According to
him Mr Apane completed the counter book when a transaction took
place.  Mr Apane would then take the seller’s
full details
as required by the Act, such as his full names, identity number, copy
of ID book, contact number and address, to the
accused who inserted
these details into the register kept at his premises.  He
insisted that he would not be able to do business
without proper
record-keeping.  Firstly, inspectors of the SAPS regularly
carried out inspections and in particular inspected
the register to
ensure compliance with the Act.  Secondly, he sold metal to SA
Metal and this company would never buy from
him if he did not have
proof that he had legally bought the metal from a reputable and
identifiable source.
[43]
The accused was taken through Exhibit ”G”.  He
denied that he was involved with the transactions relating
to one
Langa.  He insisted that Mr Apane was still working for him when
he was arrested.  At that stage Mr Apane was
still on his way to
work as it was not yet 08h00.  The second phone ending on 6456,
confiscated during his arrest, was used
by Mr Apane and it was lying
in the office at the time.  When it rang Nthema picked it up and
thereafter it was confiscated
whilst in his possession.  Phone
ending on 6006 was the accused’s private phone.  According
to the accused, CPI
and W/O Jooste confiscated all documents and
registers; therefore, they must be in possession of the registers
that he kept in
compliance with the Act.  He does not know
Charles Sithole and never used a phone ending on 1020.  He is
not known as
Navara.
[44]
During cross-examination it was put to him that neither W/O Jooste,
nor Mr Van Deventer was ever confronted with the facts
that the
accused had other registers which complied with the Second Hand Goods
Act.  He responded that they referred to registers,
but it is
clear that they referred to counter books or as Mr Van Deventer put
it, “aankoopregisters” and referring
to documents similar
to Exhibit “G”.
[45]
He also insisted, unlike Mr Mchunu testified, that Mr Apane was still
working for him when he was arrested.  He could
not explain why
this was not put to the witness.  However, he testified that he
stayd in a security complex with access control
as Mr Mchunu
testified.
[46]
He denied that he ever had contact from his 6006 cellphone with the
other accused or the phone ending on 1020, notwithstanding
the
admissions made in terms of s 220 of the CPA.  He believes that
his legal representative would not let him admit aspects
that he had
placed in dispute and queried the fact that the experts from the
cellphone companies failed to testify.  He started
the refrain
that the cellphone experts from Vodacom and other companies failed to
testify about the cellphone data and that it
cannot be correct.
All other accused sang in the same choir when they testified.
[47]
He insisted that Mr Apane kept the counter books, but that he
completed the registers required by the Act. Mr Apane would come
to
him on a daily basis with a particular counter book, the copies of
the sellers’ ID books and all personal details as required
by
the Act.  Based on this documentation he completed the registers
on a daily basis, whilst keeping the documentation such
as copies of
ID books.  On this version he should have been in possession of
the contact and address details as well as a
copy of the ID book of
the seller “Langa”, which the State submits must be a
reference to accused 2, Steven Langa.
[48]
He could not explain why deductions were made in some instances for
travelling costs and in fact alleged that he had no knowledge

thereof.  He even suggested that Mr Apane might have defrauded
him.
[49]
He never made payments to customers as this was the function of Mr
Apane.  He would withdraw cash at the bank on a daily
basis,
usually R10 000.00 at a time, to be kept as a cash float to
enable Mr Apane to pay the sellers.  If more money
was needed,
he would find out whether he could withdraw more and if so, arrange
an extra withdrawal.  Accused 1’s case
was closed after
his testimony.
[50]
Steven Langa is accused 2.  He testified in his defence.
He is 47 years old, married with five children.  He
used to be a
taxi driver.  He lived in Barcelona, Daveyton.  He did
short trips in the Daveyton, Benoni and Johannesburg
area and long
trips which took him to Ficksburg and Bloemfontein as well as
Mpumalanga.  He did not know or have any contact
with the other
accused, although he sometimes had a few “cold ones” at
accused 4’s tavern which is in the township
where he resides.
He denied ever having called accused 1 and 4.  The accused used
a cellphone with number ending on
3180 which was Rica’d on his
name.  He has no knowledge of a cellphone with number ending on
6437 relied upon by the
State in Exhibit “K”.
Insofar as the cellphone data shows that his phone was used in areas
where copper theft
had taken place, he regarded that as mere
coincidence in that he might have passed those areas at the time.
[51]
He was arrested on 12 February 2015.  It surprised him to be
standing trial for these offences and to testify again as
he had
already been convicted in respect thereof at the court in Kroonstad.
[52]
During cross-examination  he said that he travelled to Ficksburg
once a week, but during the festive season even two to
three times a
week.  This was the position between 2010 and 2015.  It was
put to him that his cellphone was picked up
five times only during
the period from 8 October 2013 to 7 May 2014 and that during the
period 3 November 2013 to 10 January 2014
the cellphone was not
picked up once in the Ficcksburg area.  Accused tried to avoid
the question, but ultimately suggested
that the data was not received
from MTN.  He denied that he made the written admissions handed
in by agreement earlier.
He insisted that there was no contact
between his phone and that of the other accused.  When put to
him that his phone 3180
had contact on an almost daily basis from 8
October 2013 to 5 December 2013 with phone 4776 Rica’d in the
name of accused
3’s wife, he merely relied on a lack of
knowledge and insisted that the MTN experts should have explained
this.  Mr
Potgieter pointed out all the relevant contacts during
the times when theft was allegedly committed and where the cellphones
were
picked up, but the accused stuck to his response.
[53]
Accused 2 insisted that he was never in possession of cellphone 6437
and denied any contact between that phone and phone 4776
Rica’d
in the name of accused 3’s wife.  Although he knows
accused 4, he never had contact with him on phone 0995,
especially
not when the phones were picked up in the same areas, such as
Ficksburg.  He denied that he was involved in any
theft of
copper cables with his co-accused and/or that he transported and/or
sold copper to accused 1.  On a question by the
court he said
that he did not have his employer and taxi owner, Mr David Sibiya’s
celllphone on his phonebook as he knew
that number by heart.  He
also mentioned that the white Nissan bakkie driven by accused 3 and
stopped by constable Sithole
near Senekal was given to him to hold as
security as he had lent money to the owner thereof, Mr Solomon.
This explains the
evidence of constable Sithole in this regard.
I stated earlier that I would make a finding on the admissibility of
hearsay
evidence by constable Sithole in this regard at the end of
the trial.  Based on the accused’s concession, the hearsay

evidence is admitted.  On his version the bakkie was kept in his
possession all the time when the debt remained unpaid.
[54]
Accused 3 is 34 years old, married with four children.  He
stayed at Etwatwa, Daveyton. On his version he used cellphone
7735
during 2013 and 2014.  He had no contact with accused 1 and 2.
He denied ever been in the Ficksburg area.
He confirmed that
the person Rica’d in Exhibit “K” whose ID number
begins with 850217 is his wife, but he knows
nothing about the two
phones 4776 and 4320.  He knows that her number is 3827.
He admitted being stopped by CPI members
on 2 February 2017 between
Balfour and Nigel.  He was put in their Ford Ranger bakkie.
At that stage he handed his phone
to them.  The number thereof
is 3130.  He was taken to their offices in Springs whilst being
assaulted on the way there.
He also explained a vicious assault
at the offices.  At about 23h00 they took him outside to his car
that was brought along
and showed him empty bags and a pair of
overalls which they insisted belong to him. He was put in the back of
CPI’s bakkie
which was kept in the garage at their offices
where he had to sleep the night.  The next morning his vehicle
was towed to
Kroonstad and he was taken there as well.  At CPI’s
offices in Kroonstad he was severely beaten by a woman on the knees

with a baton.  He admitted that photographs were taken of him
and a cellphone which looked like his.  However, he denied
that
the IMEI and cellphone numbers displayed on the photographs were
those of his cellphone.
[55]
He also testified about the incident when Constable Sithole stopped
him on the N5 to Winburg. He insisted that he gave a lady
and her two
kids a lift from Ventersburg and that he dropped them at a filling
station in town.  On his way to Winburg the
police stopped him.
He denied having been chased as testified by the constable.  He
told them about Sifiso His cellphone 7735
was taken upon his arrest
at about 02h00.  He never used his wife’s cellphone.
In cross-examination and when confronted
with the admissions of the
two numbers Rica’d in his wife’s name, he denied any
knowledge thereof.  He even suggested
that the phones might have
been Rica’d in another Ngubeni’s name. His wife never
visited Ficksburg or Senekal.
When he was stopped at Senekal in
2014, his wife did not accompany him and remained in Daveyton.
[56]
He was confronted with the contradictory version of Constable Sithole
who said he never turned left from the Ventersburg road
in the
direction of Senekal, but actually intended to go straight over the
N5 to Marquard, but changed direction when he saw the
police
vehicles.  He then said that, coming from Senekal towards
Winburg, he stopped at the stop sign when he saw the police.

The objective facts are clear: there is no stop sign on the N5 as
alleged.  He was also confronted with the fact that cellphone

4776 was active in the Senekal area on 25 March 2014 and that during
the time that accused 3 was in custody all incoming calls
to that
number were forwarded to the mail box.  After his release the
phone was used again.  He merely indicated that
he had no
knowledge of the allegations.  He did not respond meaningfully
to the question put to him in respect of  Mr
Kritzinger’s
version about his contact with accused 3’s wife and the two
phones Rica’s in her name.
[57]
His contradictory version firstly as put to Kritzinger about being
kept in a bakkie at a filling station in Balfour and his
evidence
that he was kept in Springs could not be explained properly. The two
towns are 40 km apart.  Several other aspects
were put to the
witness that he failed to explain, e.g. that Col Maree recognised his
cellphone number 4776 in 2013 from accused
4’s phonebook and
that Mr Koekemoer also found the same number under the name Amos in
accused 4’s phonebook in 2015.
[58]
Accused 4 testified in his defence.  He is 41 years old and does
not have a SA Identity book.  He is married with
two children.
His cellphone number in 2014 was 8428.  He did not know accused
1 but saw accused 2 at his tavern before
although they never had
cellphone contact.  Accused 3 is his brother.  He admitted
the incident when Mr Koekemoer stopped
and interviewed him.
Without having to deal with it, I merely wish to point out that his
version as to how it came about
that they were eventually stopped by
CPI members differs from the statements put to Mr Koekemoer.  He
admitted that his phone
was taken from him, but that it was later
returned and that he was allowed to leave.  In cross-examination
it was put on his
behalf that he knows most of the numbers on Exhibit
“F”, an extract from his phonebook, but in his evidence
he did
not want to admit the list.  On questions by the court he
stated that he remembered three names which he read out, but the
next
morning in cross-examination he insisted that he is illiterate and he
could only read numbers.  The previous day he showed
to the
court that his surname was spelt incorrectly and he admitted that his
address was taken down correctly.
[59]
He never used cellphone 0955 and testified at a stage that he  knew
nothing about Exhibit “F”; the list was
not drawn up in
his presence.  He was hitch-hiking near Nelspruit when he was
arrested by CPI members, one of which hit him
with a rifle butt on
his left eye, causing bleeding and severe damage.  He was taken
to Pretoria.
[60]
He also testified about the incident in Kenhardt in 2013 relating to
Col Maree.  He admitted that he wrote his name on
a piece of
paper, but denied that Col Maree ever had access to his cellphone in
order to peruse his phonebook.  He did not
agree that Col Maree
and Mr Koekemoer could have written down his number as 0955 in 2013
and 2015 respectively.  He could
not explain the names Mzati 2
and Mzati 3 in his phonebook with accused 1’s two Rica’d
numbers next to it; also the
number 1020 next to “28”
which is the number the State ascribes to accused 1 and/or his
business.  Also, the number
attributed to accused 3, to wit 4776
appears in the phonebook under Shoprt, but the accused did not know
this person.  It
must be emphasised that Mr Van Deventer
testified about the phone book of Charles Sithole which he examined.
He recorded
the information.  The numbers 6006 and 6456
are stored under the names Alfred and Alfred 2 respectively and
number 1020 is
stored under Elias Navara (Navara being a nickname of
accused 1).
VI
RELEVANT
LEGISLATION
[61]
The 2015 Act is a new piece of legislation.  It became operative
on 1 June 2016.  I could find only one judgment
on the topic, to
wit a judgment on appeal in the Western Cape Division by Cloete J,
with whom Fortuin J concurred.  I refer
to Gwadiso and another v
The State, case no A425/2017, delivered on 16 March 2018.  This
judgment is not directly applicable
to adjudicate the merits of the
case.  Van Zyl J of this Division also gave a judgment in this
regard, but I have been informed
by my colleague that her written and
approved judgment is not available yet.  I deem it appropriate
to quote the relevant
parts of the 2015 Act, but before I do that, it
should be reiterated that the 2015 Act has been enacted to serve
several purposes,
inter
alia
to
impose discretionary minimum sentences for essential
infrastructure-related offences, to create a new offence relating to
essential
infrastructure and to amend POCA as to insert a new offence
in Schedule 1 thereof.
[62]
Section 1 of the 2015 Act contains the following definitions:
“‘
basic service’
means a service, provided
by the public or private sector, relating to energy, transport,
water, sanitation and communication, the
interference with which may
prejudice the livelihood, well-being, daily operations or economic
activity of the public;”
“‘
essential
infrastructure’
means
any installation, structure, facility or system, whether publically
or privately owned, the loss or damage of, or the tampering
with,
which may interfere with the provision or distribution of a basic
service to the public;”
“ ‘
tamper’
includes to alter, cut,
disturb, interfere with, interrupt, manipulate, obstruct, remove or
uproot by any means, method or device,
and ‘
tampering’
shall be construed
accordingly.”
[63]
A new offence is created in s 3 which reads as follows:
“
3.1 Any person who unlawfully
and intentionally –
(a) tampers with, damages or destroys
essential infrastructure; or
(b) colludes with or assists another
person in the commission, performance or carrying out of an activity
referred to in paragraph
(a),
and who knows or ought reasonably to
have known or suspected that it is essential infrastructure, is
guilty of an offence and liable
on conviction to a period of
imprisonment not exceeding 30 years or, in the case of  a
corporate body as contemplated in
section 332(2)
of the
Criminal
Procedure Act, 1977
, a fine not exceeding R100 million.
(2) For the purposes of subsection
(1), a person ought reasonably to have known or suspected a fact if
the conclusions that he or
she ought to have reached are those which
would have been reached by a reasonably diligent and vigilant person
having both –
(a) the general knowledge, skill,
training and experience that may reasonably be expected of a person
in his or her position; and
(b)  the general knowledge,
skill, training and experience that he or she in fact has.”
[64]
Part II
of Schedule 2 to the
Criminal Law Amendment Act, 105 of 1997
was amended by s 6 of the 2015 Act and now includes theft of ferrous
or non-ferrous metal which formed part of essential infrastructure
as
defined in s 1 of the 2015 Act.  An offence in s 3 of the 2015
Act now also falls within the scope of Part II of Schedule
2
.
VII
RELEVANT
LEGAL PRINCIPLES
[65]
In
assessing the evidence a court must in the ultimate analysis look at
the evidence holistically in order to determine whether
the guilt of
the accused has been proved beyond reasonable doubt.  This does
not mean that the breaking down of the evidence
in its component
parts is not a useful aid to a proper evaluation and understanding
thereof.  See
S
v Shilakwe
2012
(1) SACR 16
(SCA) at 20, para [11].  In
S
v Hadebe and Others
1998 (1) SACR 422
(SCA) at 426f–h the SCA approved of the
following
dictum
:
“
But in doing
so, (breaking down the evidence in its component parts) 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
the 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 from the trees.”
See
also: S v Mbuli
2003 (1) SACR 97
(SCA) at 110, para [57];
S
v Van Aswegen
2001 (2) SACR 97
(SCA) at 101a-e and
S
v Trainor
2003 (1) SACR 35
(SCA) at paras [8] and [9].
[66]
It is acceptable in evaluating the evidence in its totality to
consider the inherent probabilities. Heher AJA (as he then was)
dealt
with this aspect as follows:
“
The correct
approach 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 weigh so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused’s guilt.”
See:
S
v Chabalala
2003 (1) SACR 134
(SCA) para [15].  I accept that although
separate incidents may be considered in compartments, a court should
not examine
the State and the accused’s cases in isolation.
See:
S
v Trainor supra.
[67]
In criminal trials presiding officers are often confronted with two
mutually destructive and incompatible versions.  The
presiding
officer is entitled to consider the probabilties as mentioned
supra
and to adopt the reasoning of Nienaber JA in
SFW
Group Ltd and Another v Martell Et Cie and Others
2003
(1) SA 11
(SCA).  I quote from para [5]:
“
[5]
The technique generally employed by courts in resolving factual
disputes of this nature may conveniently be summarised as follows.
To
come to a conclusion on the disputed issues a court must make
findings on
(a)
the
credibility of the various factual witnesses;
(b)
their
reliability; and
(c)
the
probabilities. As to
(a)
,
the court's finding on the credibility of a particular witness will
depend on its impression about the veracity of the witness.
That in
turn will depend on a variety of subsidiary factors, not necessarily
in order of importance, such as (i) the witness' candour
and
demeanour in the witness-box, (ii) his bias, latent and blatant,
(iii) internal contradictions in his evidence, (iv) external

contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements or actions,

(v) the probability or improbability of particular aspects of  his
version, (vi) the calibre and cogency of his performance
compared to
that of other witnesses testifying about the same incident or events.
As to
(b)
,
a witness' reliability will depend, apart from the factors mentioned
under
(a)
(ii),
(iv) and (v) above, on (i) the opportunities he had to experience or
observe the event in question and (ii) the quality, integrity
and
independence of his recall thereof. As to
(c)
,
this necessitates an analysis and evaluation of the probability or
improbability of each party's version on each of the disputed
issues.
In the light of its assessment of
(a)
,
(b)
and
(c)
the
court will then, as a final step, determine whether the party
burdened with the
onus
of
proof has succeeded in discharging it. The hard case, which will
doubtless be the rare one, occurs when a court's credibility
findings
compel it in one direction and its evaluation of the general
probabilities in another. The more convincing the former,
the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail.”
[68]
Section 208 of Act 51 of 1977 provides that an accused may be
convicted of any offence on the single evidence of any competent

witness.  There is no magic formula to apply when it comes to
the consideration of the credibility of a single witness.
The
trial court should weigh the evidence of a single witness and
consider its merits and having done so, should decide whether
it is
satisfied that the truth has been told, despite the shortcomings or
defects in the evidence.  In evaluating the evidence
the court
should not allow the exercise of caution to displace the exercise of
common sense.
See
S
v Sauls
1981 (3) SA 172
(AD) at 180E – G.
[69] In
S v Nduna
2011 (1) SACR 115
(SCA) at 120h–121e, the Supreme Court of
Appeal dealt with similar fact evidence as follows:
“
[17] It is
settled law that, whilst similar fact evidence is admissible to prove
the identity of an accused person as the perpetrator
of an offence,
it cannot be used to prove the commission of the crime itself.
This legal
principle operates, in addition, to exclude such similar fact
evidence from being confirmatory material on another count.
[18] However, the application of the
rule is not to be confused with the situation where the rule is
invoked to establish the cogency
of the evidence of a systematic
cause of wrongful conduct, in order to render it more probable that
the offender committed each
of the offences charged in respect of
such   conduct…… This court (per Schreiner JA)
stated the rule succinctly
in R v Mathews and others
1960 (1) SA
752(A)
at 758B – C:
‘
Relevancy is
based upon a blend of logic and experience lying outside the law.
The law starts with this practical or common
sense relevancy and then
adds material to it or, more commonly, excludes material from it, the
resultant being what is legally
relevant and therefore admissible….
Katz’s case is authority for asking oneself whether the
questioned evidence is
only, in common sense, relevant to the
propensity of the appellants to commit crimes of violence, with the
impermissible deduction
that they for that reason were more likely to
have committed the crime charged, or whether there is any other
reason which, fairly
considered, supports the relevancy of the
evidence’.”
See
also:
S
v Moti
1998 (2) SACR 245
(SCA) at 258 where the court found that similar
fact evidence of a
modus
operandi
was admissible to corroborate inadequate evidence of identification
and
S
v D
1991 (2) SACR 543
(A) at 546G – 547B where FH Grosskopf JA
said:
“
Taken
together these similarities are sufficiently striking in my judgment
to corroborate the other circumstantial evidence pointing
to the
appellant as the culprit,....”
[70] In assessing
circumstantial evidence a court should be careful not to approach the
evidence upon a piece-meal basis.
The following well-known
dictum
of Davis AJA in
R v De Villiers
1944 AD 493
at
508-9 should be adhered to:
“
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.”
[71]
Zulman AJA (as he then was) aptly referred to the following
quotation in
S
v Reddy and Others
1996(2) SACR 1 (A) at 8i:
“
A number of
circumstances, each individually very slight, may so tally with and
confirm each other as to leave no room for doubt
of the fact which
they tend to establish…
..Not
to speak of greater numbers, even two articles of circumstantial
evidence, though each taken by itself weigh but as a feather,
join
them together, you will find them pressing on a delinquent with the
weight of a mill-stone…”
[72]
In
S
v Boesak
[2000] ZASCA 112
;
2000
(1) SACR 633
(SCA) the court dealt at para [48] with the trite legal
principle that the “
State
is not required to plug every loophole, counter every speculative
argument and parry every defence which can be conceived
by
imaginative counsel without a scrap of evidence to substantiate it.”
[73]
The
SCA in Boesak also reiterated the well-known principle at para [50]
that the “
cross-
examiner should put his defence on each and every aspect which he
wishes to place in issue, explicitly and unambiguously,
to the
witness implicating his client.  A criminal trial is not a game
of catch-as-catch-can, nor should it be turned into
a forensic
ambush
”
.
It should not be countenanced that the credibility of a witness be
attacked based on speculation and without cross-examination
of the
witness on pertinent issues.
[74]
It is necessary to consider duplication of convictions as Mr van der
Merwe raised the issue in his argument with specific reference
to
theft (count 9) and tampering, damaging or destroying of essential
infrastructure in terms of the provisions of s 3 of the 2015
Act.
Theft is defined as the unlawful and intentional appropriation of
inter
alia
moveable property which belongs to another in order to permanently
deprive the person of such property.  See: CR Snyman,
Criminal
Law
,
5th ed at 483.  In terms of s 3 of the 2015 Act an offence is
committed if a person unlawfully and intentionally tampers,
damages
or destroys essential infrastructure.
“
Essential
infrastructure”
and
“
tamper”
are
clearly defined in the 2015 Act.  There is a clear distinction
between the elements to be proven by the State to ensure
a conviction
in respect of these offences.  There is no single test to
consider duplication of convictions, but two indicators
to be used
are the test of a single intention and the evidence test.  See:
S
v McIntyre
1997
(2) SACR 333
(T) at 336-7 and Du Toit
et
al, Commentary on the
Criminal Procedure Act
,
14-6 and further.  It is also appropriate to make use of both
tests at the same time,
i.e.
that of intention and evidence.  If the elements constituting
the offences differ, there cannot be a duplication even though
one
single act is committed or transaction is concluded.
VIII
EVALUATION
OF THE EVIDENCE
[75]
I dealt with Mr Van Deventer’s evidence in some detail above
but failed to mention the cross-examination.  Before
I deal with
that it needs to be pointed out that the witness produced the typed
version of Charles Sithole’s phonebook written
down by him
during Sithole’s arrest.  I refer to Exhibit “K”
pp 15 – 21.  The two Rica’d
cellphone numbers of
accused 1 are stored  under the names Alfred and Alfred 2
respectively.  Another cellphone number
is stored under the name
Elias Navara to wit 1020, which phone Mr Van Deventer testified was
used  most regularly.  As
mentioned he information in
respect of these three numbers corresponds with the information
obtained from the phonebook of accused
4 as set out in Exhibit “F”.
It is also important to note that accused 3’s number 4776 is
stored in Sithole’s
phonebook under the name Amo Bus and
accused 2’s phone 3180 is stored under the name Silva.
Clearly the accused made
used of nick- and or false names to hide the
identity of their contacts.
[76]
Mr Van Der Merwe placed on record before the start of his
cross-examination that he had instructions not to attack the
correctness
of the cellphone data.  He put it to the witness
that accused 3 was arrested with phone number 3130 and not 4320.
The
witness denied this and stated that there would be no way for him
to get into possession of phone 4320, a phone Rica’d in
the
name of accused 3’s wife other than through accused 3.
The witness also denied the version that phone 6456 belonged
to
accused 1’s employee, Mr Apane.  The witness stated that
during accused 1’s arrest no manager or bookkeeper
was found on
the premises, but only two casual workers.  When accused 1 was
interrogated on the day of his arrest about the
inscriptions in his
records, he never mentioned a person such as Mr Apane.  When it
was put to the witness that the reference
to Langa in Exhibit “G”
could be any other person, but accused 2, he denied that with
reference to the cellphone records.
Accused 2’s cellphone
number was never in dispute and that number had contact with accused
1 more than once before and/or
after the transactions were concluded.
He also submitted that the copper sold on the two occasions is of a
similar weight of those
stolen in Ficksburg.  He admitted that
he relied on an estimate to reach this conclusion.  Although he
stated that the
number 1020 was not found in the phonebooks of the
other accused he clearly made a mistake as this number is stored in
the phonebook
of accused 4 under “28”.
[77]
When it was put to the witness that accused 2 never had contact with
accused 1 and did not know him, he pointed to at least
two pages,
1363 and 1369 of Exhibit “P” in support of his version
that they had telephonic contact.  Numbers 6006
and 1020 were in
contact with accused 2.  He also disproved a statement that
accused 1 never had contact with accused 3 and
4 by referring to
Exhibit “P”.  Contrary to the statement put to him,
he insisted that phone 1020 was used
by either accused 1 or an
employee to have contact with the other accused.  Contrary to
accused 3’s later evidence,
it was put to the witness that he
never used the two phones Rica’d in his wife’s name.
The witness responded
that if accused 3 did not use those phones, his
wife was in regular contact and/or visited crime scenes with accused
1, 2 and 4.
[78]
As could have been expected, the evidence of all the witnesses
that
testified in respect of theft in the form of cutting and removing of
telephone wires, the optic fibre wire and the FCC cables,
as well as
the removal of fishplates, bolts and nuts have been left
unchallenged.  These witnesses were merely cross-examined
about
the actual date and time of theft and the value of the stolen items.
Needless to say, it was not possible to be precise.
I accept
that the items mentioned in the evidence of Messrs Motaung, Mofokeng,
Bester, Van Niekerk, Van den Berg, Rudman, Klem,
Posholi and Motsumi
have been stolen from the respective complainants shortly before the
theft was dicovered.  It is also
accepted that none of these
witnesses could provide reliable evidence of the exact dates and/or
times when the offences were committed
or the value of the stolen
goods. None of them were called to give expert evidence in respect of
valuations. The probabilities
are overwhelming to the effect that the
theft in each instance occurred close to and within a day ot two
before it was detected.
[79]
Although the value of the stolen goods may not have been proved with
sufficient weight, the consequences of the theft in several
cases and
the potential consequences in other instances could not be
challenged.  No doubt, the promulgation of the 2015 Act
is a
logical consequence of the unacceptably high crime rate  relating
to infrastructure.  Considerable damage may be
caused to
essential infrastructure by the commission of offences that are in
themselves relatively minor.  The legislature
has recognised
this as is apparent from the preamble to the 2015 Act.
[80] Mr Van der Merwe in
an able and convincing argument made the following submissions which
I shall keep in mind during my evaluation
of the evidence:
(1) The State’s
case against accused 1 stands or falls with the court’s finding
on the ownership/possession or lack
thereof of cellphone 1020.
The cellphone data which was placed before the court mainly deals
with this phone and not accused
1’s private phone 6006 or
another phone Rica’d in his name, to wit 6456, in order to
prove contact and therefore co-operation
between the accused during
relevant times.
(2) This number 1020 was
found in a certain Charles Sithole’s phonebook, stored under
the name Elias Navara and that phone
is not before court.  The
court cannot find that this is a reference to accused 1. Sithole also
did not testify.  Mr
Mchunu never testified that he contacted
accused 1 on that number.  There is proof of contact between
these two numbers and
Mr Van der Merwe argued that nobody would phone
himself.
(3) There are several
other scrap metal dealers in the area of accused 1’s business
and it is not the only reasonable deduction
to be made from the
proven facts that number 1020 belonged to accused 1.
(4) Accused 1 is entitled
to be acquitted on all charges.
(5) Mr Van der Merwe
submitted that he has intructions from accused 2, 3 and 4 to argue
that credibility findings should be made
in their favour and against
the State insofar as their versions are contradicted by State
witnesses.
(6) Accused 2 is the
owner of phone 3180 and his evidence that he as a taxi driver went to
Ficksburg on regular visits should be
found to be reasonably possibly
true, although there were deficiencies in his version.  He did
not know accused 3 and 4 and
cannot explain cellphone contact between
his phone and their phones.
(7) Even the cellphone
data reflects that accused 2 arrived in Ficksburg on 25 January 2014
and thus after the commission of the
theft on 23 - 24 January. He
should be acquitted on counts 4 and 5.
(8)  Mr Van der
Merwe did not make a similar submission in respect of count 3
allegedly committed on 10 -11 January 2014.
However, if accused
2 is convicted on this charge, racketeering has not been proven and
the accused shall be acquitted on count
2.
(9) Mr Van der Merwe
argued that if the court does not make credibility findings in favour
of accused 3, he could not make any further
submissions as to why he
should not be convicted in respect of counts 2 to 10, save for his
argument pertaining to duplication
of convictions to be dealt with
infra
. He specifically indicated that he could not think of
any reason why s 2(1)(e) of POCA should not be found applicable.
(10)  The same
arguments were advanced in respect of accused 4 and it was
specifically argued that the evidence of Mr Koekemoer
and Col Maree
should be rejected and accused 4’s version accepted.
(11)  There is no
evidence that accused 4 was on the scene during commission of the
theft in count 3.
(12)  Accused 4 was
only in the Senekal area from 3 April after commission of the theft
and could not be involved with the
crime in count 8.
(13)  Alternatively,
accused 4 may only be convicted on counts 4, 5, 6, 7, 9 and 10.
(14)
Mr Van der Merwe submitted that the State relies on the same set of
facts to secure convictions on counts 9 and 10 and
this is nothing
but a duplication of charges.  Also, count 10 relates to damage
to infrastructure and
in
casu,
whatever
was achieved, there was no damage in the sense as intended by the
legislature.  The trains could still use the railway
and the
potential to create damage is not sufficient for a conviction.
At best for the State accused 3 and 4 could only be
convicted in
respect of theft, count 9.
[81]
Mr Potgieter argued the case for the State, the heads of argument
having been prepared by him and his leader, Mr Pretorius.
I do
not intend to deal with their submissions separately, but shall
incorporate that in my evaluation.  It is clear that
I am called
upon to adjudicate in essence who the cellphone users of the relevant
phones were at the times referred to in the cellphone
analysis.
If that is not proven beyond reasonable doubt in respect of one, more
or all of the accused persons, the case falls
flat in respect of
those accused.
[82]
In order to analyse the evidence to arrive at my evaluation and
final conclusions, I decided to break down the evidence
in certain
compartments.  Before I do that, the uncontested and admitted
evidence is recorded in Exhibit “S”.
I appreciate
that the accused testified that they do not agree with some of the
admissions in Exhibit “S” which
were recorded in terms of
s 220 of the CPA.  However, these are formal admissions made on
their instructions, signed by them
and recorded as such, forming part
of the evidential material.  There was no attempt to withdraw
any admissions.  I am
satisfied that these admissions have been
made after proper consideration of the evidence that the State
intended to lead in this
regard.  In my view the accused
persons’ attempt to halfheartedly retract from formal
admissions tarnish their evidence
to such an extent that it must be
considered with suspicion.
[83]
There is no direct evidence linking any of the accused to any of the
offences.  Therefore the court is bound to consider
the case on
the basis laid down in
R
v Blom, R v De Villiers
and the latest judgment of the SCA,
S
v Reddy
.
I refer to the
dicta
of
the last two judgments which I quoted
supra
.
[84]
I am of the view that, based on the authorities quoted, I am entitled
to consider the similarities in the manner in which some
of the
offences were committed.
[85]
I also accept that a court does not have to believe an accused’s
version in order to acquit him/her.  If there is
reasonable
doubt of his/her guilt the accused must be acquitted.  The
totality of the evidence must be considered in order
to arrive at a
finding and in doing so, a court is entitled to consider the
probabilities as set out in
Chabalala
supra.
In
my view it is in order to evaluate the evidence as the SCA has done
in
Martell
supra,
obviously
taking into consideration that the court dealt with a civil matter
and the test in criminal cases is much more stringent
than in civil
matters.  All State witnesses gave their evidence in a coherent
and acceptable manner.  No inconsistencies,
material or
immaterial, can be found in their versions.  They all made a
good impression on the court.  There are no
improbabilities in
their versions and I am satisfied that they have told the truth,
based on the documentary evidence and objective
facts that
corroborate their versions.  Also, witnesses testifying in
respect of different occassions, removed in time and
distance from
the other, corroborated other witnesses.
[86] The accused tried to
retract from the formal admissions made by them and insisted that
experts of the cellphone providers should
have testified.  In
doing this, their credibility is tarnished.  There are numerous
internal contradictions in their
versions as well as external
contradictions with what was put on their behalf and/or the
established facts.  All four of them
were poor witnesses and
their credibility is tainted insofar as they are contradicted by any
of the State witnesses.   I
have no doubt to accept the
version of such State witnesses and to find that the accused are not
trustworthy.  In the next
paragraphs I make certain findings but
wish to emphasise that some of those findings are based on the
cellphone analysis and my
conclusions in that regard.
Counts
1 and 2
[87]
The following findings are made:
1.
Accused 1 is the sole member of Malvern Scrap Metal CC and regarded
himself as the sole owner of this business.
2.
His private cellphone number is [...] 6006 and the number of a
cellphone used in the business is [...] 6456; both these
phones were
Rica’d in the name of accused 1.
3. The
business is situated in Malvern, Germiston, whilst accused 1 resided
at Wychwood Lodge in Malvern East, Germiston.
4.
Accused 1’s business kept counter books, recording purchases of
scrap metal, including copper, and one such book for the
period
January to April 2014 was handed in as Exhibit “G”.
5.
Ex
facie
Exhibit
“G” 298.5 kg of 1A copper was bought from one Langa at a
price of R16 417.50 on 12 January 2014  and
on 26 January
2014 309 kg of 1A copper was bought from Langa at a price of
R16 995.00. This happened just after the incidents
of theft in
Ficksburg.
6.
Accused 1’s aforesaid two cellphone numbers were saved under
the names Mzati 2 and Mzati 3 in the phonebook of a phone
with number
[...] 0955 found in possession of accused 4 in 2015 by Mr Koekemoer.
The number 1020 is also found in this phonebook
under “28”.
7. Col
Maree found a phone in accused 4’s possession in Kenhardt,
Northern Cape in 2013 and according to the contemporaneous
note made
by him, handed in as Exhibit “Q”, accused 4’s
cellphone number was recorded as [...] 0955, exactly
the same as what
Mr Koekemoer found nearly two years later.  Both these two
witnesses were single witnesses who testified
about unrelated
events.  I accept that a cautionary rule applies.  I am
satisfied that they were not only impressive
witnesses, but that they
delivered credible and reliable evidence which is in both instances
corroborated by the documentary evidence
as well as other evidence
presented by the State.
8. The
cellphone data, contained in four lever arch files and accepted as
Exhibit “P”, was admitted to be true and correct
in
Exhibit “S”.  According to these data there was
contact between accused 1’s two phones as well as phone
number
1020 which the State attributes to accused 1 and/or his business and
the cellphones allegedly used by accused 2, 3 and 4
during the
periods when thefts were committed during January 2014.
9. I
accept as a fact that cellphone 1020 belonged to accused 1 and/or was
used by him in his business in order to clinch business
transactions
- in all probabilities all such deals being illegal - and that is
confirmed by the false Rica information in respect
of the cellphone.
This number was saved on the phonebook of Charles Sithole, a copper
thief, under the name Elias Navara.
I refer to the version of
Mr Van Deventer who gave direct evidence in this regard.  Mr
Mchunu knows that accused 1 was driving
a Navara vehicle and that he
was also known as Navara. The cellphone communication corresponds
with the dates when the copper theft
has taken place in Ficksburg on
two occassions and the dates of the purchases of copper from one
Langa.
10.
The locations of the cellphone towers were admitted, the effect
thereof being that the movement of the different cellphone users
of
the phones attributed to the accused persons as set out in Exhibit
“P” must be accepted as correct.  The contact

between the persons driving from Gauteng  to Ficksburg to steal
the copper and thereafter returning to Gauteng and accused
1 has been
proven.
11. Mr
Mchunu testified that he transported stolen copper as member of a
syndicate of copper thieves to accused 1, that his contact
to
indicate that he was on his way to Malvern was with accused 1
personally and although employees offloaded copper, accused 1
always
came in to pay him.  He also visited accused 1’s home
situated in a security complex on several occasions.
12.
Accused 1 took down notes during the whole trial and when Mr Van der
Merwe turned around to obtain instructions from accused
3 in court
during cross-examination, accused 1 (and also 2) immediately lent
over and took part in the discussion. Accused 1 appeared
to be in
charge of the accused in court. I am satisfied that accused 1 was the
manager and/or person in control of a syndicate
involved in copper
theft.  It is also clear that his business from time to time
financed people by paying for their transport
in order to assist them
to transport copper to his business, only to deduct the loans when
the sellers are paid for the copper
“
sold”
.
I accept that a cautionary rule applies to the testimony of Mr Mchunu
who was clearly involved with illegal activities and even
pleaded
guilty in respect of his role in copper theft.  Although not
involved in the present case, he must be seen as a co-perpetrator.

However, I have no doubt that he has spoken the truth.
13.
Accused 1 failed to live up to the standard expected of a party that
should dispute the opponent’s case in that he did
not dispute
the version of W/O Jooste or Mr Van Deventer about the counter books
by putting to them that proper registers were
kept in compliance with
the Second Hand Goods Act.  Therefore, the belated version that
proper registers were kept is a recent
fabrication and must be
rejected as false.  As stated in
Boesak
supra,
a party cannot fail to cross-examine a witness on a specific issue
and later testify and/or argue that such witness should
be
disbelieved.
14.
Accused 1’s version that he used to withdraw money daily and
handed same to Mr Apane who was solely responsible to pay
customers
and thereby distancing him from his own business is highly unlikely
and untenable.  He even suggested that Mr Apane
might have
defrauded him based on the deduction of transport costs.
Clearly, accused 1 tried to shift the blame and looked
for a
scapegoat.  Unlike as he testified, Mr Apane did not work for
him on the day of his arrest.  There is no reason
why a senior
and trusted employee such as Mr Apane, his bookkeeper, according to
accused 1, would leave his work cellphone at work
during the night.
Mr Mchunu’s version lends credence to W/O Jooste and Mr Van
Deventer’s versions that Mr Apane
was not employed there at the
time of accused 1’s arrest.  If Mr Apane was suspected by
accused 1 to be the guilty party
who acted illegally behind his back
(as should have been the case as he had direct dealing with customers
according to accused
1), W/O Jooste would have been informed there
and then.
15. I
also find that accused 2 was the link between accused 3 and 4 on the
one hand and accused 1.  The reference to Langa
in the counter
book can only be a reference to him, bearing in mind the cellphone
data and the totality of the evidence. When his
ties with accused 1
were broken, no further evidence could be found of cellphone
communication between accused 1 and the other
accused.
16.
Another aspect that plays a role here, but also in respect of the
other counts – something that I found in examining Exhibit
“P”
- is that although there was always sporadic contact between accused
3 and 4, the contact heightened tremendously
during the time that
theft occurred, not only at Ficksburg, but also at Senekal and Glen.
The cellphone records prove this
and I refer to some occasions.
On 11 and 12 January 2014 there were nine calls between accused 3 and
4 whilst accused 3 was
in the Ficksburg area. Just before 06h00
accused 3 phoned 1020 twice, first when on his way to the Wychwood
area  and secondly,
when his phone picked up Wychwood Primary.
At that stage three calls were made to and received from accused 2.
On 25 January
2014 accused 3 arrived in Ficksburg at 20h46 and he
remained in the area for 7.5 hours until the next morning 04h12.
During
this time there was contact with accused 4 on twenty
occasions.  Contact was also made with 1020 hereafter.
17. Accused 2 had regular
contact with 4776 of accused 3 from 8 October 2013 and also contact
with 1020 on several occasions during
October 2013.  He also had
regular contact with accused 4 from that time onwards.  On 10
January 2014 accused 2 was in
the Ficksburg area for a short while
and before, during and after this time he had contact with accused 3
and 4.  On 11 January
2014 accused went back to Ficksburg for a
short while and before, during and after the trip he had contact with
accused 1, 3 and
4.  On 25 January accused 2 found him in the
Ficksburg area again.  This time he spent 7.5 hours there from
20h46 to
04h11 the next morning.  He had numerous contact with
accused 4 and once with accused 3.  On his way back to Gauteng
he also had contact with accused 1. On 27 January 2014 his cellphone
picked up the Wychwood tower.  He was in that vicinity
again on
30 January and 1 February 2014 when he had contact with accused 1.
Counts
3 - 6
[88]
All four accused are allegedly involved in the commission of these
crimes, to wit the three theft counts in Ficksburg during
January
2014 and the count of theft on or about 24 to 26 March 2014 on the
Senekal / Marquard road.  I indicated that there
is no evidence
linking accused 1 to the theft in count 6 and the State conceded
this. The following are uncontested or admitted
evidence and/or can
be accepted, based on the totality of the evidence:
1. The
cellphone data contained in Exhibit “P”.
2.
Accused 3 was arrested on the Senekal / Winburg road in the early
hours of 25 March 2014 when he came from Ventersburg intending
to
cross the N5 towards Marquard, but at the last moment changed
direction and headed to Winburg on the N5.
3. The
SAPS were on the scene a short distance – about 100 metres -
from the intersection in the direction of Marquard
and Constable
Sithole followed accused 3, but only managed to stop him about 10 km
further.
4.
Accused 3 was arrested, but released late afternoon on 25 March
2014.  During the time of his detention he was not in possession

of his cellphone and consequently all calls received went onto
voicemail.  Before arrest and after his release cellphone
communication took place indicating the location of the phone in the
Senekal area.  Some time after accused 3’s release
the
cellphone user moved in the direction of accused 3’s home in
Etwatwa, Gauteng.  I refer to the cellphone analysis
infra.
5. The
cellphone analysis proves that accused 3 and 4 were in frequent
contact with each other prior to, during and after visits
to the
crime scenes and this carried on in respect of count 6 relating to
the theft in Senekal.  However, there is no proof
that accused 1
and 2 featured anymore during the March incident as well as
thereafter.  Mr Potgieter conceded that he could
not ask for a
conviction in respect of these two accused pertaining to count 6.
6. I refer to the
findings made under the heading, “counts 1 and 2”
supra
which should be read herewith.  The theft in
respect of all these counts,
i.e.
have been proven, save for
the remark in paragraph 5 above.
Counts
7 and 8
[89]
Only accused 1,3 and 4 are charged with these two offences, to wit
theft of the Senekal municipality’s power cable at
the
Syferfontein dam on or about 24 to 26 March 2014 and theft of
Transnet property near the Senekal Railway Station on or about
1
April 2014.  I have already indicated during argument that there
is no evidence pointing towards the guilt of accused 1
and the State
conceded this. The following are uncontested or admitted evidence
and/or found to be proven:
1. The
cellphone data is contained in Exhibit “P” and  I
also refer to the cellphone analysis
infra
a
bout
the cellphone users’ movements and communication during March
and April 2014.  The difference is that accused 1
and 2 are not
involved anymore.  The data speaks for itself.  This time,
24 and 25 March 2014, accused 3 spent 16 hours
in the Senekal area.
Several contact occurred with accused 4 prior to, during and after
the visit.
2. The
theft at the Senekal waterworks and railway station on or about 24 –
26 March 2014 and 1 April 2014 respectively is
not in dispute.
3. As said, the movements
and telephonic communication between accused 3 and 4 are properly
recorded in Exhibit “P”.
I do not intend to go
through the same exercise to show this, but refer to the cellphone
analysis
infra
.
Counts
9 and 10
[90]
Only accused 3 and 4 are charged in this regard.  The offences
were allegedly committed in September 2016 which was after
the arrest
and detention of accused 1 and 2.  The following evidence is
uncontested or admitted and/or is accepted to be the
truth:
1.
Accused 3 and 4 were the cellphone users of the cellphones attributed
to them during this time and their denial of the evidence
of the
State witnesses is improbable, false and rejected.
2.
Both of them were in the Glen / Bloemfontein area for a long time
during the time that the FCC cables were probably cut and stolen.
I
refer to the cellphone analysis.  Accused 4 spent 30 hours in
the Bloemfontein area from 22 – 24 September 2016.
He had
contact with accused 3 on eight occasions during this time as well as
before and after his visit.  I did not calculate
the period
spent by accused 3 in the area, but he stayed here for about the same
time.
3. The
theft of the FCC cables at Glen at about 24 – 26 September 2016
is undisputed.
4. As
indicated earlier, both these accused, as well as the other two, were
poor witnesses who made a bad impression on the court.
I find
it difficult to say who of accused 3 or 4 was the poorer, because of
the many inconsistencies and improbabilities in both
versions.
Accused 3 was found in possession of items used to assist
with the cutting of copper cables.  Accused
4 transformed into
an illiterate person during the trial as I have indicated.
[91]
Having accepted that the cellphone users have been identified in
accordance with the State’s version, I have taken the
liberty
to copy the composite cellphone analysis inserted in the State’s
heads of argument in order to save time.  I
wish to add that I
carefully noted the explanations of Mr Van Deventer, but went further
and did my own examination of the cellphone
analysis, some of which I
set out earlier.  I am satisfied that the information is correct
as I verified it with Exhibit ”P”.
Mr Potgieter assured
me that they made a correct compilation of the various cellphone
records, showing how the accused had contact
with each other.  I
quote from the heads of argument:
“
Column
1 indicates the date of the cellphone contact. Column 2 indicates the
time of the cellphone contact. Column 3 indicates if
and with whom
accused 1 had contact at a specific time. Column 4 indicates the
location where accused 1’s cellphone picked
up at the time of
contact. Column 5 indicates if and with whom accused 2 had contact at
a specific time. Column 6 indicates the
location where accused 2’s
cellphone picked up at the time of contact. Column 7 indicates if and
with whom accused 3 had
contact at a specific time. Column 8
indicates the location where accused 3’s cellphone picked up at
the time of contact.
Column 9 indicates if and with whom accused 4
had contact at a specific time. Column 10 indicates the location
where accused 4’s
cellphone picked up at the time of contact.
Count
3
[See
PDF for table]
Column
1 indicates the date of the cellphone contact. Column 2 indicates the
time of the cellphone contact. Column 3 indicates if
and with whom
accused 3 had contact at a specific time. Column 4 indicates the
location where accused 3’s cellphone picked
up at the time of
contact. Column 5 indicates if and with whom accused 4 had contact at
a specific time. Column 6 indicates the
location where accused 4’s
cellphone picked up at the time of contact.
Counts
6 and 7
[See
PDF for table]
Count
8
[See
PDF for table]
Counts
9 and 10
[See
PDF for table]
[92]
Finally
,
and
having considered all the evidence in totality, I find that all the
cellphones have been correctly attributed to the various
accused
persons as shown in the exhibits and that all these phones are
so-called
“
guilty”
phones,
especially cellphone 1020 which I already found was used by accused 1
and/or his business.  See
Nxumalo
v The State
9450/2008)
[2009] ZASCA 113 (23 September 2009) at paras [10] – [13].
[93]
Just to repeat, I indicated
supra
that
cautionary rules apply insofar as single witnesses testified in some
instances and even a co-perpetrator in another instance.

Notwithstanding this, I am satisfied that, considering that the case
must be adjudicated upon circumstantial evidence, the only
reasonable
inference to be drawn from the proven facts is that the accused
persons’ guilt has been proven in respect of those
counts
mentioned
supra.
I
say this  having considered the pattern of conduct apparent from
the cellphone data,  the objective evidence such as
extracts
from phone books and notes, Exhibit “G”, as well as real
evidence in the form of photographs together with
the credible
evidence by all the State witnesses corroborated as stated above and
the absence of a reasonable explanation for the
accused persons’
presence at the crime scenes and/or the proven telephonic
conversations between them.
[94]
Mr Van Der Merwe did not argue that the provisions of POCA are
inapplicable on the basis of a factual finding that all four
accused
were involved in at least two counts of theft during January 2014.
Having found this, I also find that an enterprise
in accordance with
the provisions of POCA was operated with accused 1 as the manager and
accused 1 – 4 as the syndicate members
thereof who worked
together in stealing copper and sharing the profits.
[95] I am satisfied that
no duplication of convictions will follow if accused 3 and 4 are
convicted of both counts 9 and 10.
I dealt with the legal
position above and I am satisfied that the essential elements to be
proven in respect of the two offences
are different.  The
accused must be well trained in order to understand the risks
involved in stealing electrical cables and
I accept that they knew or
ought reasonably to have known that they were tampering with
essential infrastructure and that their
actions may interfere with
the provision of a basic service to the public, being public
transportation of passengers and goods.
It would not make any
sense to find that there will be duplication of convictions in a
situation as
in casu.
Such a finding will negate the
whole purpose of the 2015 Act.
IX
CONCLUSION
[96] I therefore conclude
that the State succeeded in proving beyond reasonable doubt that
accused 1, 2, 3 and 4 are guilty of theft
in respect of counts 3, 4
and 5 and that all four accused should be convicted on count 2 in
that they participated in the activities
of an enterprise through a
pattern of racketeering activity.  Accused 1 was the manager of
this enterprise and he should be
convicted on count 1.  The
State failed to prove accused 1 and 2’s involvement in respect
of count 6 and accused 1’s
involvement in counts 7 and 8.
Accused 3 and 4 were involved in counts 6, 7 and 8 and their guilt
has been proven beyond
reasonable doubt.  I am also satisfied
that a proper case has been made out against accused 3 and 4 in
respect of counts 9
and 10.
X
VERDICT
[97]
The following orders are issued;
Count
1
–
Accused
1 – guilty  of contravening s 2(1)(f) of Act 121 of 1998
(POCA) during January 2014.
Count
2
–
Accused
1, 2, 3 and 4 – guilty of contravening s 2(1)(e) of Act 121 of
1998 (POCA) during January 2014.
Counts
3, 4 and 5
–
Accused
1, 2, 3 and 4 – Guilty of theft.
Counts
6, 7 and 8
-
Accused 1 and 2 are acquitted on count 6 and accused 1 is acquited on
counts 7 and 8.  Accused  3 and 4 are convicted
of theft in
respect of these three counts.
Counts
9 and 10
–
Accused
3 and 4 are convicted as charged.
_______________
JP DAFFUE ADJP
12
September 2018