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[2016] ZAKZPHC 115
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Shange and Others v S (AR152/2015) [2016] ZAKZPHC 115; [2017] 3 All SA 289 (KZP) (15 December 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
KWA-ZULU
NATAL DIVISION, PIETERMARITZBURG
CASE NO: AR 152/2015
CASE
NO: CC 169/07
15
December 2016
In
the matter between:
MFANUFIKILE GOODWILL
SHANGE Accused
1
FOX
SITHOLE Accused
2
ZOFANIA
MTHETHWA Accused
3
SAKHELE JAN
SIBISI Accused
4
FANI JOHANNES
MBONAMBI Accused
5
SIBUSISO BENEDICT
SHABALALA Accused
6
XOLANI MHLUNZI
BUTHELEZI Accused
7
THEMBA NQOBITZITHA
KHATIDE Accused
8
MPHO PATRICK
TSOTENSI Accused
9
LEBOHANG LEBO MOTHEPU
(now deceased) Accused
10
FLAVIO JOSE
MBONAMBI Accused
11
BHEKINKOSI LEAONARD
KUNENE Accused
12
JOHANNES
KHEHLA
LANGA
Accused
13
SIPHO
MHLONGO Accused
14
THABO OSCAR
MAHOA Accused
15
SIPHO PERCY
KUNENE Accused
16
THABANI MGISI
ZONDO Accused
17
LUCKY BUTHEZ
PHASHA Accused
18
VUSI PELE
NJOKO Accused
19
SIPHO VUSI MPONDO
GUMEDE Accused
20
BONGANI SHIPA
TSHABALALA Accused
21
ERNEST
NDLANGAMANDLA
Accused
22
HAMILTON LIZOKO
MAZIBUKO Accused
23
MBUSO MNCUBE
Accused
24
EDDIE KALANGA
UBISI Accused
25
THULANI
BLESSING
MTHETHWA Accused
26
and
THE
STATE Respondent
JUDGMENT
KOEN
J
INTRODUCTION:
[1]
[1]
On 2 October 2006 two motor vehicles of Fidelity Cash Management
Services (‘Fidelity’), conveying inter alia cash,
drop
safe cash bags, deposit slips and cash boxes were ambushed in two
separate incidents some 34.89 kilometers apart along the
N2 National
Road in north-east KwaZulu-Natal. In each instance the
modus
operandi
was the same. The Fidelity vehicles were rammed and pushed off the
road resulting in them overturning. Any possible resistance
was
overcome by the threat of and the use of assault rifles and firearms.
The two incidents occurred almost simultaneously. The
first was a
robbery near the Charters Creek turn-off (‘Charters’)
from the National Road near Mtubatuba involving a
Toyota Hi-Ace
Fidelity vehicle. It occurred at approximately 18h25 to 18h40. Access
was gained to this vehicle by force and
inter
alia
money was removed before the attackers fled the scene. This robbery
became the subject matter of count 9 in the court
a
quo
.
The second incident, not for any lack of trying on the part of the
perpetrators, became an attempted robbery near the Penicuik
turn-off
(‘Penicuik’) near KwaMbonambi involving a Dyna vehicle.
This occurred at approximately 18h30 to 18h50. The
Dyna vehicle was
an armoured one which successfully resisted attempts, even the use of
some mechanical device, possibly an angle
grinder, to prize it open
to remove the contents. This attempted robbery became the subject
matter of count 6 in the court
a
quo
.
It is common cause that the robbery and attempted robbery were
accompanied by ‘aggravating circumstances’.
[2]
These two primary offences in turn gave rise to or involved a number
of secondary offences.
[3]
The
secondary offences in respect of the Charters incident are reflected
in counts 1, 2, 10,11,12,13 and 14. The secondary offences
in respect
of the Penicuik incident gave rise to counts 3, 4, 5, 7, 8, 15, 16,
17, 18, 19, 20, 21, 22 and 23. Counts 24 to 30 related
to charges
framed under the Fire Arms Control Act
[4]
in respect of firearms and ammunition retrieved at the time of the
arrest of some of the suspected offenders late on the evening
of 2
October 2006 to the early hours of 3 October 2006 at the Mvoti Toll
Plaza (‘Mvoti’).
[2]
The appellants shall in this judgment be referred to as they were in
the court
a
quo
,
with reference to the numerical number allocated to each accused.
[5]
The complainants in the different counts and witnesses will in
certain instances be referred to by their surnames only and without
any appellation. No disrespect is intended. The former accused number
10 died during the trial. Accused number 12 was acquitted
on all the
counts.
[6]
At the conclusion of
the trial,
[7]
the following
verdicts were returned and sentences imposed in respect of the
remaining accused:
Count 1 – Theft of
a Mercedes Benz motor vehicle on 2 October 2006, which vehicle was
abandoned at Charters – all the
accused were convicted and each
sentenced to seven years’ imprisonment.
Count 2 – Theft of
a BMW 730i motor vehicle on 2 October 2006 which vehicle was found
abandoned at Charters – all the
accused were convicted and each
sentenced to seven years’ imprisonment.
Count 3 – Theft of
an Isuzu bakkie on 12 September 2006 which vehicle was found
abandoned at Penicuik – all the accused
were convicted and each
sentenced to seven years’ imprisonment.
Count 4 – Theft of
Nissan bakkie on 13 September 2006 which vehicle was found abandoned
near Penicuik – all the accused
were convicted and each
sentenced to seven years’ imprisonment.
Count 5 – Theft –
All the accused were acquitted.
Count 6 – The
attempted robbery with aggravating circumstances at Penicuik –
all the accused were convicted and each
sentenced to ten years’
imprisonment.
Count 7 – The
attempted murder of the crew member of the Dyna, Wiseboy Ncwane at
Penicuik – all the accused were convicted
and each sentenced to
seven years’ imprisonment.
Count 8 – The
attempted murder of the driver of the Dyna, Graham Thring at Penicuik
– all the accused were convicted
and each sentenced to five
years’ imprisonment.
Count 9 – Robbery
with aggravating circumstances at Charters – all the accused
were convicted and each sentenced to
fifteen years’
imprisonment.
Count 10 – The
attempted murder of Bheki Mnqayi, an occupant of the Fidelity Hi-Ace
at Charters – all the accused were
convicted and each sentenced
to five years imprisonment.
Count 11 – The
attempted murder of Sipho Mnguni, the driver of the Fidelity Hi-Ace
at Charters – all the accused were
convicted and each sentenced
to five years’ imprisonment.
Count 12 – The
attempted murder of Constable Thulani Biyela near Charters –
all the accused were convicted and each
sentenced to ten years’
imprisonment.
Count 13 – The
attempted murder of Inspector Etwell Khoza near Charters – all
the accused were convicted and each sentenced
to ten years’
imprisonment.
Count 14 – The
attempted murder of Constable Mbuso Mthethwa near Charters –
all the accused were convicted and each
sentenced to ten years’
imprisonment.
Count 15 – The
robbery with aggravating circumstances of Vezubuhle Msweli near
Penicuik by taking his vehicle ignition keys
– all the accused
were convicted and each sentenced to two years’ imprisonment.
Count 16 –
Kidnapping - All the accused were acquitted.
Count 17 –
Kidnapping - All the accused were acquitted.
Count 18 – The
robbery with aggravating circumstances involving the hijacking of
Mthokozisi Masango’s vehicle at Penicuik
– all the
accused were convicted and each sentenced to fifteen years’
imprisonment.
Count 19 – The
attempted murder of Mthokozisi Masango near Penicuik - all the
accused were acquitted.
Count 20 – The
kidnapping of Masango’s daughter, Nothile, near Penicuik - all
the accused were acquitted.
Count 21 – The
murder of Thembinkosi Gumede, the Maxim security guard, near Penicuik
– all the accused were convicted
and each sentenced to life
imprisonment.
Count 22 – The
attempted murder of the Maxim security guard, Oscar Nkabinde, near
Penicuik – all the accused were convicted
and each sentenced to
eight years’ imprisonment.
Count 23 – The
attempted murder of the Maxim security guard, Sicelo Ntombela, at
Penicuik – all the accused were convicted
and each sentenced to
eight years’ imprisonment.
Counts 24 to 26 –
The unlawful possession of the handguns – All the accused were
acquitted.
Counts 27, 28, 29 and 30
– Unlawful possession of two AK47 rifles, one LMG and 69 live
R5 rifle rounds, 72 live AK47 rounds,
48 live 9mm pistol rounds and 5
live .38 special rounds ammunition, at the time of arrest at Mvoti –
Accused 2, 3, 4, 6,
9, 11, 13, 15, 17, 18, 21, 23 and 24 only were
convicted, all these counts were taken together for the purpose of
sentence and
each of these accused sentenced to fifteen years’
imprisonment. The remainder of the accused were found not guilty on
these
counts.
Count
31 – Unlawful failure by accused 14 to lock away his 9mm Luger
firearm in a prescribed safe – Accused 14 found
was found
guilty and sentenced to 3 months’ imprisonment.
[8]
[3]
Ex
facie
the record, leave to appeal was granted to all the accused by the
trial court in respect of their convictions on counts 1 to 4,
6 to
15, 18, 21 to 23 and 27 to 29.
[9]
Count 30 was not listed when leave to appeal was granted, but this
appears to have been a patent omission and counsel all argued
the
appeal on the basis that the leave to appeal extended to count 30 as
well. This judgment will therefore also deal with the
merits of the
conviction on count 30. Accused 14 was not granted leave to appeal in
respect of count 31. The conviction on that
count accordingly falls
outside the subject matter of this judgment. Leave to appeal against
sentence was granted only in respect
of the life sentence imposed on
count 21.
ISSUES
ON APPEAL:
[10]
[4]
It is not in dispute that the State proved the commission of the
crimes which featured in the trial. The central issue arising
however
is whether the court
a
quo
erred in concluding that the State had proved beyond a reasonable
doubt that it was the various accused who had committed the
offences
[11]
of which they
were convicted, or were guilty of those crimes.
[12]
[5]
In the appeal accused 1, 6, 7, 8, 13, 14, 20, 22, 24, 25 and 26 were
represented by Mr Slabbert. Accused 2, 3, 9, 15, 16, 17,
18, 19, 21
and 23 were represented by Mr Fraser. Accused 4, 5 and 11 were
represented by Mr Seedat. Mr Slabbert had indicated in
his Practice
Note that no reasons would be submitted by him why the conviction of
accused 6, 7, 14, 20, 22, 24 and 25 of the Charter’s
Creek
robbery (count 9) or the conviction of the secondary offences in
respect of that robbery should be set aside. The secondary
offences
relating to the Charter’s robbery are those in counts 10, 11,
12, 13 and 14. In argument he made a similar but varied
concession
extended to also include accused 1, but confined to counts 9, 10 and
11. I shall proceed in this judgment on the basis
of what was
conceded in argument before us, namely that accused 1, 6, 7, 14, 20,
22, 24 and 25
[13]
concede that
they were convicted correctly on counts 9, 10 and 11. Mr Fraser
indicated that no reasons would be advanced by him
on behalf of
accused 2, 9, 15, 16, 18, 21 and 23
[14]
in respect of their conviction of attempted robbery at Penicuik
(counts 6) and the attempted murders of Ncwane and Thring at Penicuik
(counts 7 and 8 respectively) and the Robbery at Charters (count 9)
and the attempted murder of Mnqayi and Mnguni, the occupants
of the
Hi-Ace (counts 10 and 11 respectively), which were described as
‘justified’. Mr Seedat did not make any concessions
in
respect of accused 4, 5 and 11.
[6]
A reading of the record will immediately reveal that the aforesaid
concessions made by Mr Slabbert and Mr Fraser are correctly
made. The
case against those accused on the counts conceded was, for reasons
set out in the judgment of the court
a quo
, overwhelming and
their conviction undoubtedly correct. Nothing further needs to be
said in this judgment.
[7]
What is left then in respect of the individual accused, grouped
according to their representation, and dealt with in this judgment,
are:
Accused
represented by Mr Slabbert
:
Accused 1, 25 and 26 –
their conviction on counts 1 to 4 (theft of motor vehicles), count 6
(attempted robbery at Penicuik),
counts 7 and 8 (attempted murders at
Penicuik), counts 15, 18, 21, 22 and 23.
Accused 6, 7, 8, 13, 14,
20, 22 and 24 – their conviction on counts 1 to 4 (theft of
motor vehicles), count 6 (attempted robbery
at Penicuik), counts 7
and 8 (attempted murders of at Penicuik), counts 15, 18, 21, 22 and
23, and counts 27 to 29, and count 30.
Accused
25 and 26 – their conviction on counts 1 to 4 (theft of motor
vehicles), count 6 (attempted robbery at Penicuik),
counts 7 and 8
(attempted murders at Penicuik), count 15, 18, 21, 22 and 23.
Accused
represented by Mr Fraser
:
Accused 2, 9, 15, 16, 18,
21 and 23 – their conviction on counts 1 to 4 (theft of motor
vehicles), count 12, 13, 14, 15, 18,
21, 22 and 23, counts 27 to 29,
and count 30.
Accused
3, 17 and 19 – their conviction on all counts i.e. counts 1 to
4, 6, 7 to 8, 9, 10 to 14, 15, 18, 21, 22, 23, 27 to
29 and 30.
Accused
represented by Mr Seedat
:
Accused 4, 5 and 11 - all
counts i.e. counts 1 to 4, 6, 7 to 8, 9, 10 to 14, 15, 18, 21, 22 to
23, 27 to 29 and 30.
SCHEME
OF THIS JUDGMENT:
[8] In this judgment I
shall discuss the following
seriatim
:
(a) Whether any of the
accused should have been convicted of counts 1 to 4 - the theft of
motor vehicles counts;
(b) Whether the accused
who were convicted of counts 26 to 30 – the possession of
firearms and ammunition counts, should have
been so convicted;
(c) Whether accused 1, 6,
7, 14, 20, 22, 24 and 25 who have conceded the correctness of their
conviction on counts 9, 10 and 11,
relating to Charters, should also
be convicted on counts 6, 7 and 8 relating to the attempted robbery
and attempted murders at
Penicuik. That will involve a consideration
of the doctrine of common purpose;
(d) Whether accused 8 and
13 (the ones not making any concessions and represented by Mr
Slabbert) and accused 3, 17 and 19 (the
ones represented by Mr Fraser
and not making any concessions) and accused 4, 5 and 11 (represented
by Mr Seedat and not making
any concessions) should have been
convicted on 6 and 9, and further whether they should have been
convicted of counts 10 and 11
and counts 7 and 8. This will likewise
involve a consideration of the doctrine of common purpose;
(e) Whether any of the
accused should have been convicted of the further subsidiary offences
on counts 12, 13 and 14 (the attempted
murder counts in respect of
the policemen near Charters) and counts 15 (robbery of Msweli), count
18 (robbery of Masango) and counts
21 to 23 (murder and attempted
murders of the Maxim security guards) near Penicuik, which will
entail a consideration of the terms
of any alleged prior agreement
amongst the accused and whether the State proved a common purpose in
respect of these offences beyond
reasonable doubt;
(f) Finally, I shall
consider the appeal against the sentence of life imprisonment on
count 21, and if so which determinate sentences
should be directed to
run concurrently.
SOME
OBSERVATIONS REGARDING THE EVIDENCE:
[9]
With the exception of DNA evidence in the form of blood of accused 25
being found on one of the abandoned vehicles, and evidence
of a
finger print of accused 17 being found on a money container retrieved
from the blue Hyundai sedan motor vehicle in which accused
14 and 19
were arrested on 3 October 2006, there is no forensic real evidence,
such as for example ballistic evidence linking any
firearms that were
retrieved to any of the crime scenes, nor other fingerprints found
connecting any of the accused to the crime
scenes.
[15]
The evidence against the accused is therefore entirely
circumstantial, being based largely on records of cell phone numbers
used
by the accused and/or items found in their possession after
their arrest. The cell phone records cannot prove the precise
location
where the accused were when calls were made and sms’s
sent or received on their cell phones, but places them in the
approximate
communication range from the physical location of the
cell phone towers which relayed these various communications. The
detailed
analysis of these records as reflected in the transcribed
evidence, some of which was also summarized in the judgment of the
court
a
quo
was not attacked. This evidence will not be repeated herein.
[10]
Circumstantial evidence can however sometimes be more compelling than
direct evidence.
[16]
A court
is always enjoined to examine all the evidence; it must neither look
at evidence implicating the accused in isolation to
determine whether
there is a proof beyond reasonable doubt, nor should it look at
exculpatory evidence in isolation to determine
whether an accused’s
version is reasonably possibly true. The correct approach is to
consider all the evidence ‘in
the light of the totality of the
evidence of the case’.
[17]
This court, as a court of appeal, shall not interfere in the findings
of the trial court in regard to conviction unless there is
a material
misdirection which resulted in an incorrect conclusion being reached.
An appeal lies against the conclusions reached
and not against the
trial court’s reasons for convicting. If the reasoning of the
trial court might be open to criticism,
but the conclusion reached is
nevertheless correct for different reasons, then the appeal must
nevertheless fail.
[18]
[11] In drawing any
inferences from circumstantial evidence, it is trite law that:
(a) Firstly, the
inference sought to be drawn must be consistent with all the proven
facts; and
(b)
Secondly, the proven facts must be such that they exclude every other
reasonable inference.
[19]
[12]
Due to the two main crimes
[20]
having been committed at almost the same time some distance apart, it
is physically impossible for the individual accused to have
been
physically present at both scenes to perpetrate the crimes including
the subsidiary offences relating to each. The cell phone
records show
that accused 1, 2, 6, 7, 9, 11, 14, 15, 18, 20, 21, 22, 23, 24, 25
and 26 were all in the vicinity of Charters at
the time of the
robbery at Charters and not near the attempted robbery at Penicuick.
There are no cell phones records of accused
3 and 17 placing them in
the vicinity of any of the crime scenes. The cell phone records of
accused 4, 5, 8, 13, 16 and 19 are
inconclusive.
[13]
The crimes were also not all committed at the actual Charter’s
robbery and Penicuik attempted robbery scenes. The attempted
murder
counts in respect of the policemen (counts 12 to 14) who were driving
along the N2 where they encountered traffic did not
take place at the
actual scene of the robbery at Charters, but a short distance away,
but nevertheless in the general area. The
robbery of Msweli’s
vehicle keys (count 15) also did not take place at the actual scene
of the attempted robbery at Penicuick
but at a point on the N2 before
Msweli reached Penicuik where his way was blocked by a bakkie, he was
stopped and two persons unknown
to him removed the keys to his
vehicle. The hijacking of Masango’s vehicle (count 18) occurred
it seems after the attempted
robbery at Penicuick and in a plantation
about 1 km from that scene. The murder of Gumede (count 21) and the
attempted murder of
Nkabinde and Ntombela (counts 22 and 23) also
occurred along the gravel road through the same plantation when they
came across
apparently the same persons who had confronted Masango,
who then fired at them fatally injuring the deceased.
[14] The evidence has
been referred to in detail in the judgment of the court
a quo
.
I refer only briefly to the following apparent chronological sequence
of events to contextualize this judgment:
(a) At about 4am on the
morning of 2 October 2006, Sithole, a tactical support officer
employed by Fidelity was driving along the
R34 road near Jabulani
towards Empangeni. He came across four vehicles travelling in convoy,
each occupied by a number of adult
African males. One of the vehicles
was a 7 series BMW similar to one used three weeks before in another
Fidelity cash in transit
robbery to capsize the Fidelity vehicle.
This caused him to pay particular attention to these vehicles. The
vehicles included:
(i) A 7-series BMW, ‘old
model’ greyish in colour, bearing a Gauteng Province
registration number;
(ii) A white Nissan LDV
bearing a registration number NRB […]80;
(iii) A white Mercedes
Benz C-class with registration number RZF […] GP; and
(iv) A 7-series BMW,
greyish in colour, bearing registration number KRY […] GP.
All the vehicles had a
number of adult male occupants.
(b) He recorded the
aforesaid registration numbers. He furthermore also noted that the
Mercedes Benz C series vehicle emitted sparks
from its one rear wheel
consistent with a tyre that has been worn to the extent that the
steel lining comes into friction with
the road surface. He kept them
under observation, his suspicion clearly aroused, and followed these
vehicles at a safe distance
through Empangeni, and then to Richards
Bay to Meerensee a suburb in Richards Bay and eventually to Mzingazi
another suburb, where
the four vehicles with occupants
in situ
all turned into the yard to the house of, as subsequently discovered,
accused 24. Sithole left them there and then went to work
where he
reported his suspicions.
(c) Late afternoon on 2
October 2006, Mnqayi (count 10) and Mnguni (count 11) were travelling
in the Fidelity Hi-Ace in the area
of Charters on the N2 having
collected cash and other documents from various collection points
earlier that day, when their vehicle
was rammed off the road, causing
it to overturn on the side of the road, an act which could easily
have had fatal consequences
for them. A group of heavily armed men
descended on their vehicle. Access was obtained by forcing the
vehicle open and various
cash boxes and other containers and a Rossi
revolver were removed (count 9) by the assaillants who then fled the
scene.
(d) Late afternoon Ncwane
(count 7) and Thring (count 8) were travelling in the Fidelity Dyna
truck along the N2 but in the area
of Penicuik after having collected
cash and other documents from various collection points earlier in
the day. They had travelled
ahead of the Hi-Ace. Near Penicuik their
vehicle was also rammed off the road causing it to capsize at the
side of the road, a
very dangerous manouvre which could easily have
resulted in them being killed. Various assaillants descended on their
vehicle and
attempts were made to cut open their armoured vehicle by
some motorized mechanical device which could be heard inside the
Dyna.
These attempts were however unsuccessful and the assailants
eventually fled the scene empty handed.
(e) Three policemen
constable Biyela (count 12), inspector Khoza (count 13) and constable
Mthetwa (count 14) were travelling along
the N2 late afternoon on 2
October 2006 when they encountered some traffic as though there had
been an accident. They stopped behind
a Clover truck. Whilst parked
there the Mercedes Benz C series referred to above approached and
parked some 4 meters behind their
marked police vehicle. They were
ordered out of their vehicle by an occupant of the Mercedes Benz and
an exchange of fire ensued.
Biyela returned fire and an assailant was
apparently wounded and taken to a dark coloured BMW on the scene. The
policemen fled
for their lives. A subsequent examination of their
police vehicle revealed that the driver’s window was shattered,
two bullet
holes showed where the bonnet to the vehicle was
penetrated up to the instrument panel, the windscreen revealed that
shots had
been fired just in front of the driver and in front of the
passenger, and the rear glass behind the passenger’s headrest
and the headrest itself had holes. This shooting occurred at Charters
within view of the Fidelity Hi-Ace which was lying on its
side.
(f) Msweli (count 15),
whilst driving his Opel Corsa on the N2 in the direction of Penicuik
attempted to overtake a bakkie travelling
in the same direction, but
was blocked by this bakkie which came to a standstill. This was some
distance away from the actual Penicuik
scene. Msweli was dispossessed
of his vehicle’s keys by two occupants of the bakkie who got
back into the bakkie and drove
off.
(g) One Masango (count
18) and his daughter were travelling home in his double cab Ford
Ranger. He decided, after following the
suggestion of a neighbour,
who passed him when he had come to what he thought was a stoppage due
to an accident, to take a route
home along a gravel road. However,
when he came upon what he thought was a crime scene, he backed
towards the N2. When he was about
to enter the N2, at a point
approximately 1km from the attempted robbery scene at Penicuik he was
confronted by men with guns,
forced to stop and robbed of his
vehicle.
(h) Gumede (count 21),
Nkabinde (count 22) and Ntombela (count 23) were travelling in a
security firm vehicle of their employer,
Maxim Security, on their way
back to their depot in KwaMbonambi along the gravel route through the
plantation in the greater Penicuik
area. They came upon apparently
the same persons who had confronted Masango, who started firing at
them in their vehicle. Gumede
who was in the back of the vehicle that
was fitted with a canopy, was wounded fatally.
(i) Late in the afternoon
of 2 October 2006 Sithole received a report of the attempted robbery
at Penicuik on the N2. He proceeded
to the scene and observed the
Dyna which had capsized and come to rest on its left side off the
road. He observed a BMW which apparently
had been used to ram the
Dyna. He recognised the BMW as one of the motor vehicles he had
encountered on the R34 during the early
hours of that morning. He
discovered that the registration plate of that BMW had been changed.
He found the registration plate
with the number he had recorded
earlier that morning, on the rear seat inside the BMW vehicle.
(j) While still at the
Penicuik crime scene Sithole was informed of some abandoned motor
vehicles at the murder scene on the gravel
road in the nearby
plantation. Upon arriving there he saw the Nissan LDV which he had
encountered early in the morning on the R34.
The Nissan LDV still
bore the registration numbers which he had recorded earlier.
(k) Next Sithole received
a report of the robbery at Charter’s Creek and proceeded there.
At that scene he identified the
white Mercedes Benz C-class vehicle
which was stationary behind the police vehicle which had transported
Biyela, Khoza and Mthetwa.
He identified the Mercedes Benz as the one
he had encountered that morning on the R34 as part of the convoy with
the same worn
right rear tyre with the steel mesh exposed. The
registration plate had however been changed. Upon inspection he found
that the
‘new’ registration plate had been placed over
the number plate which he had observed and recorded earlier.
(l) Govender, a Fidelity
inspector, arrived at Charter’s Creek scene. He introduced
Sithole to Captain Mncube of the South
African Police. Sithole
narrated all he knew up to that stage to Mncube. Mcube with Govender
then requested Sithole to take them
to the house at Mzingazi to which
he had followed the four vehicles which had contained the suspects
that morning, which Sithole
did. Having been shown the house in
question Mncube and Govender dropped Sithole at Meeresee, Richards
Bay and returned to the
house at Mzingazi.
(m) On approaching the
home of accused 24, Govender and Mncube were passed from the front by
a BMW vehicle, which they had noticed
earlier when Sithole was with
them, turning out of the property of accused 24. They approached the
home cautiously. A white Toyota
kombi vehicle occupied by various
adult males turned out of the driveway of the property in front of
them in the same direction
as they were travelling. They drove slowly
past the property and noticed a number of African males standing
around in the yard
of the property. They noticed a dark BMW which was
in the process of reversing out of the yard, a blue Hyundai sedan
with its engine
idling, and a red Toyota Hi-Ace kombi parked in the
yard, all readying to leave. A large number of adult males were
standing around
the vehicles in the yard. Govender and Mncube
followed the white kombi along the John Ross highway to where it
turned south onto
the N2 national road in the direction of Durban. It
then temporarily left their sight while Govender proceeded to the
Caltex garage
at Empangeni where he dropped off Mncube who
transferred to a ‘flying squad’ police vehicle, which he
had called for
and in which he then sped south along the N2 highway,
towards Durban in pursuit of the white kombi. Having confirmed with
the toll
gate operator at Mtunzini that a white kombi occupied by
various males had passed through earlier, Mncube continued with the
high
speed hot pursuit until the white kombi was eventually stopped
by blocking the only open lane allowing traffic through at Mvoti.
Mncube observed the occupants seated at the back were discarding
money onto the floor of the kombi. Accused 2, 3, 4, 6, 9, 11,
13, 15,
17, 18, 21 and 23 with accused 24 as driver of the kombi were all
apprehended;
(n) Shortly thereafter
the blue Hyundai sedan which Mncube recognized as one of the vehicles
he had seen at accused 24’s house
arrived at Mvoti with accused
14 as driver and accused 19 as passenger. Mncube identified accused
19 as one of the men he had seen
in the vicinity of the gate at
accused 24’s house earlier that evening because of his
‘dreadlocks’ and dress.
They were arrested;
(o) Next the red Toyota
Hi-Ace driven by accused 12 and with accused 5, 7, 16 and 22 as
passengers arrived at Mvoti, and they were
all arrested;
(p) Finally, the dark
BMW, driven by accused 8 with accused 1 and 20 as passengers, arrived
at Mvoti. They were also duly arrested.
(q) At the time of their
arrest at Mvoti the various accused were found in possession of inter
alia the following:
Accused
no 1 – R56 009 in cash, a Fidelity drop safe bag
[21]
which was utilized by Baobab Service Station and which had been
collected by Fidelity from that Service Station on 2 October 2006
and
was in the Hi-Ace at the time of the robbery, and a Nokia 6230 cell
phone.
[22]
Accused
no 2 – R44 300 cash, a Fidelity drop cash bag
[23]
which was identified as a bag from the Petroport at Hluhluwe which
was collected by Fidelity, and a Nokia 2600 cell phone.
[24]
Accused
no 3 – R23 550 cash and a Nokia 6230 cell phone.
[25]
Accused
no 4 – R2 770 cash and Nokia N70 and Alcatel cell phones.
[26]
Accused
no 5 – R23 100 cash and a Nokia 6600 cell phone.
[27]
Accused
no 6 – R7 440 cash and a Nokia 1100 cell phone.
[28]
Accused no 7 – R42
550 cash.
Accused
no 8 – R21 520 cash, a pair of white gloves
[29]
and a Nokia 3310 cell phone.
[30]
Accused no 9 – R28
640 cash and a Nokia 1600 cell phone.
Accused
no 10 – R23 030 cash and a grey glove.
[31]
Accused
no 11 – R34 450 cash, a pair of brown woollen gloves
[32]
and a Samsung cell phone.
Accused no 12 – R2
350 cash, Nokia 8310, Samsung and Nokia 6230 cell phones, and another
Nokia 6230 cell phone which was later
established through cell phone
records to belong to accused 7.
Accused no 13 – R1
250 cash.
Accused
no 14 – R13 400 cash and a Nokia 6230i cell phone.
[33]
Accused
no 15 – R3 710 cash, a black beanie/balaclava cap
[34]
and a Nokia 2100 cell phone.
[35]
Accused
no 16 – R22 190 cash and a Motorolla V3 cell phone.
[36]
Accused
no 17 – R22 230 cash, a pair of black gloves
[37]
and Nokia 6100 and Nokia 7610 cell phones.
[38]
Accused
no 18 – R4 350 cash and Nokia 6680 and Motorolla V3 cell
phones.
[39]
Accused
no 19 – R28 430 cash (in the cubbyhole in front of him), a FNB
deposit slip
[40]
of Bridge
Wholesalers at Ingwavuma which was taken at Charters, and a Nokia
6822 cell phone.
[41]
Accused
no 20 – R35 890 cash and a Nokia 6260 cell phone.
[42]
Accused
no 21 – R370 cash and a Nokia 7250i cell phone.
[43]
Accused
no 22 – R710 cash and a Samsung D500 cell phone.
[44]
Accused
no 23 – R3 650 cash and a Nokia 6020 cell phone.
[45]
Accused
no 24 – R4 040 cash and Nokia 6820 and Nokia N70 cell
phones.
[46]
(r) Inside the white
Toyota Hi-Ace kombi, owned and driven by accused no 24 with accused
2, 3, 4, 6, 9, 11, 13, 15, 17, 18, 21 and
23 as the other occupants,
were inter alia:
-
A Nokia cell phone,
-
R79 990 cash strewn over the floor in the
rear passenger area,
-
A pair of yellow plastic kitchen gloves,
-
Two balaclavas one which DNA comparison
established has sweat emanating from accused 25 on it,
-
A white glove,
-
A glove with blood which blood a DNA
comparison test showed was blood from accused 25,
-
Another glove established through DNA
comparative tests as belonging to accused 23,
-
Two AK47 rifles,
-
Four AK47 magazines,
-
Two R5 magazines,
-
A Z88 pistol with 15 rounds of ammunition
in the magazine,
-
An R5 rifle without a serial number, and,
-
a large black bag with a petrol driven
angle-grinder.
In the red Toyota Hi-Ace
driven by accused 12 with accused 5, 7, 12, 16 and 22 as passengers
was:
-
R30 296 cash,
-
A Blue beanie,
-
A Black cap/hat.
In the blue Hyundai with
registration number ND […]36 driven by accused 14 with accused
19 as passenger were inter alia:
-
R2 800 cash,
-
A Blue cap,
-
A pair of brown woollen gloves,
-
Rossi .38 revolver loaded with ammunition
taken during the Charters robbery,
-
Three unopened and charged Fidelity Guard
money boxes, one of which had a palm print of accused 17.
All these items were
later identified to be the property of Fidelity robbed at Charters.
In the red kombi, a money
bag and R30 296.00 were found on the floor.
In the blue BMW were a
-
A Standard Bank and Stop Card of accused 5
(who was travelling in the red kombi.
-
A Standard Bank Debit Card of accused 5.
-
A flight ticket for accused no 5.
-
An identity book of accused 14 (who was
driving the blue Hyundai sedan).
-
A 9mm Luger pistol belonging to, and the
identity book of, accused no 14.
(s) Although accused no 5
was travelling in the red kombi, his identity book was found in the
BMW which was driven by accused no
8 with accused no 1 and 20 as
passengers. Although accused no 17 was travelling in the white Toyota
Hi-Ace kombi, his palm print
was found on one of the cash boxes
recovered in the boot of the Hyundai which was driven by accused 14,
with accused 19 as passenger.
Although accused 14 was driving the
Hyundai his firearm and identity book were found in the BMW.
(t) A
search by Mncube and an inspector Ntomblea was conducted at the house
of accused no 24 on 4 October 2006. A bucket found in
one of the
toilets contained various items, subsequently handed by them to the
investigating officer, and later identified by various
persons as
indicated below as items collected by Fidelity and being transported
in the Fidelity vehicles at the time of the robbery:
Exhibit
No. Item
recovered
Identifying person
SS1
P-bag of
Shamula Water Scheme
Thoko
Duzi
SS2
FNB
deposit slip of Shamula Water Scheme
Thoko
Duzi
SS3
P-bag of
Supertrade Spar, Mbazwana
Kabongile
Zika
SS4
FNB
deposit slip of Supertrade Spar, Mbazwana
Kabongile
Zika
SS5
P-bag of
Pep Stores, Mbazwana
Rosemund
Mlambo
SS6
2 x FNB
deposit slips of Pep Stores, Mbazwana
Rosemund
Mlambo
SS7
2 x FNB
deposit slips of Pep Stores, Mbazwana
Rosemund
Mlambo
SS8
2 x FNB
deposit slips of Pep Stores, Mbazwana
Rosemund
Mlambo
SS9
Stop-loss
bag of Ellerines, Kosi Bay
Velaphi
Mthembu
SS10
P-bag of
Spar, Kosi Bay
Princess
Mthembu
SS11
FNB
deposit slip of Spar, Kosi Bay
Princess
Mthembu
SS12
P-bag of
Hilltop Camp, Hluhluwe
Ian
Oglesby
SS13
2 x FNB
deposit slips of Hilltop Camp, Hluhluwe
Ian
Oglesby
SS14
2 x FNB
deposit slips of Hilltop Camp, Hluhluwe
Ian
Oglesby
SS15
FNB
document of Wildlife
Ian
Oglesby
SS16
FNB
document of Hilltop Camp, Hluhluwe
Ian
Oglesby
SS17
P-bag of
Spar, Kosi Bay
Princess
Mthembu
SS18
FNB
deposit slip of Spar, Kosi Bay
Princess
Mthembu
SS19
Stop-loss
bag of Barnetts, Emanguzi
Nozipho
Ngobese
SS20
Stop-loss
bag of Total garage, Kosi Bay
Sibusiso
Mzimela
SS21
Stop-loss
bag of Expo Liquors
Bheki
Buthelezi
SS22
Stop-loss
of Town Talk, Emanguzi
Patience
Ngubane
SS23
Stop-loss
of Bambanani T-Junction
Vusi
Tembe
SS24
P-bag of
Jet Stores, Emanguzi
Thandi
Masinga
SS25
P-bag of
Baobab Service Station, Hluhluwe
Rudi
Meyer
SS26
FNB
deposit slip of Baobab S/ Station, Hluhluwe
Rudi
Meyer
SS27
FNB
deposit slip of Jet Stores, Emanguzi
Thandi
Masinga
SS28
FNB
deposit Slip of Jet Stores, Emanguzi
Thandi
Masinga
SS29
3 x FNB
deposit slips of Barnetts, Emanguzi
Nozipho
Ngobese
SS30
2 x FNB
deposit slips of Barnetts, Emanguzi
Nozipho
Ngobese
SS31
2 x FNB
deposit slips of Barnetts, Emanguzi
Nozipho
Ngobese
SS32
3 x FNB
deposit slips of Barnetts, Emanguzi
Nozipho
Ngobese
SS33
2 x FNB
deposit slips of Barnetts, Emanguzi
Nozipho
Ngobese
SS34
2 x FNB
deposit slips of Ellerines, Kosi Bay
Velaphi
Mthembu
SS35
2 x FNB
deposit slips of Ellerines, Kosi Bay
Velaphi
Mthembu
SS36
2 x FNB
deposit slips of Ellerines, Kosi Bay
Velaphi
Mthembu
SS37
2 x FNB
deposit slips of Ellerines, Kosi Bay
Velaphi
Mthembu
SS38
2 x FNB
deposit slips of Ellerines, Kosi Bay
Velaphi
Mthembu
SS39
2 x FNB
deposit slips of Ellerines, Kosi Bay
Velaphi
Mthembu
SS40
2 x FNB
deposit slips of Town Talk, Emanguzi
Patience
Ngubane
SS41
2 x FNB
deposit slips of Town Talk, Emanguzi
Patience
Ngubane
SS42
2 x FNB
deposit slips of Town Talk, Emanguzi
Patience
Ngubane
SS43
2 x FNB
deposit slips of Town Talk, Emanguzi
Patience
Ngubane
SS44
FNB
deposit slip of Expo Liquors, Mkuze
Bheki
Buthelezi
SS45
Fidelity
Bulk Receipt
Mr
Clarke
SS46
3 x FNB
deposit slips of Total garage, Kosi Bay
Sibusiso
Mzimela
SS47
3 x FNB
deposit slips of Total garage, Kosi Bay
Sibusiso
Mzimela
SS48
3 x FNB
deposit slips of Total garage, Kosi Bay
Sibusiso
Mzimela
SS49
3 x FNB
deposit slips of Total garage, Kosi Bay
Sibusiso
Mzimela
SS50
3 x FNB
deposit slips of Total garage, Kosi Bay
Sibusiso
Mzimela
SS51
3 x FNB
deposit slips of Total garage, Kosi Bay
Sibusiso
Mzimela
Also
discovered at accused 24’s house was a bullet proof vest and an
assortment of motor vehicle registration plates.
(u) The cell phone
records of the accused reflect calls made and received by the accused
on their handsets from 1 September 2006
to 3 October 2006. Some
72 126 calls were analysed by an expert, Mrs Botha. These have
been summarized correctly and the import
thereof dealt with in the
judgment of the court
a quo
, which will not be repeated
herein.
THE
THEFT OF THE FOUR MOTOR VEHICLES – COUNTS 1 TO 4:
[15] The case advanced by
the State was that these vehicles were stolen for the purpose to be
used in the primary robberies and
thereafter abandoned at the
respective scenes. The vehicles in counts 1 and 2 were found
abandoned at Charters and those in counts
3 and 4 were found
abandoned at Penicuik. The trial court correctly observed that:
‘
There
is no evidence that the perpetrators who used and thereafter
abandoned the stolen vehicles at the scene of the robbery were
themselves the original thieves thereof’.
The
trial court however convicted the accused saying:
[47]
‘…
,
the basis upon which the perpetrators of the offences in which the
motor vehicles were used, are guilty of theft, rests on the
principle
that theft is a continuing offence. …. Only two possibilities
appear from the facts – the vehicles were
either stolen or
acquired, knowing that they were stolen. Either way, the perpetrators
who used the stolen vehicles at the crime
scene, would be guilty of
theft of the respective vehicles’.
Specifically, the court
held:
‘
As
it has been proved beyond reasonable doubt that the accused (save
accused 12), were all party to the common purpose to rob the
Fidelity
vehicles; and that the commission of the motor vehicle thefts were
seen as germane to the proper execution of the robberies,
we hold
that the guilt of the accused concerned has been proved beyond
reasonable doubt.’
[16] Mr Selepe, on behalf
of the Respondent, has argued that the need for the use of stolen
vehicles in the circumstances of the
robbery and attempted is
glaringly obvious; that it is quite inconceivable that the
perpetrators would have used and jettisoned
their own vehicles at the
crime scene as that would be too costly and would enable the police
to trace the vehicles back to them
as registered owners. He quotes
from the judgment of the court
a quo
where it was said that:
‘
.
. . the principle that theft is a continuing offence, has application
in respect of the second of the aforementioned possibilities.
When an
object such as motor vehicle is obtained from the thief or his
successor, knowing that it was stolen, the acquisitor (
in
casu
) has the requisite
animus
furandi
and undoubtedly intends to
permanently deprive the owner of the vehicle, more so knowing the use
to which the vehicle would be
put. In the instance the BMW was used
to ram the Hi-Ace, while the Mercedes was involved in the attempted
murder of the police
officials (Counts 12, 13 and 14).
The
inference is inescapable that all the accused who shared the common
purpose to rob the Hi-Ace, knew or subjectively foresaw
that stolen
motor vehicles were needed for the execution of the robbery and were
indifferent thereto. Accordingly the actions of
the thief or
acquisitor of the motor vehicles in question are imputed to them
also.’
[17]
Mr Selepe argued further that the inference drawn by the trial Court
is justified, if one has regard to the evidence as a whole,
and that
with theft being a continuous crime, it makes no difference that the
appellants were not involved in the original stealing
of the motor
vehicles but that their subsequent participation in permanently
depriving the owners of their vehicles makes them
just as guilty as
the original thief.
[18] In the discussion
that follows I shall deal with:
(a)
The principle that theft is a continuing offence;
[48]
and thereafter
(b)
The conclusion that the accused all knew that the vehicles were
stolen or acquired knowledge that they were stolen.
[19]
It is trite law, as was held in
S
v Cassiem
[49]
that:
‘
By
the same token,
contrectatio
and knowledge of the theft need not be proved by direct evidence.
Their existence can be inferred from the facts and circumstances
of
the case’.
[20]
The principle that theft is a continuing offence, correct as that
statement is, it does not however impose criminal liability
on all
persons who subsequently come into possession or even control of a
stolen vehicle, even if they could strongly be expected
to have
suspected that it must be stolen, otherwise there would be no place
for the separate existence of the offence of receiving
stolen
property knowing it to be stolen. The principle that theft is a
continuous offence, is essentially aimed at overcoming the
problem
where stolen items may be conveyed to the geographical restricted
different area of jurisdictions of different courts.
It
provides for the theft ‘to continue’ and hence to be
continued to be committed and hence justiciable within
the
jurisdiction of any court into which the stolen goods are brought.
Snyman,
Criminal
Law
[50]
correctly summarizes the principles in this respect in remarking:
‘
The
rule that theft is a continuing crime means that theft continues to
be committed as long as the stolen property
remains
in the possession of the thief
or
someone who has participated in the
theft
or
someone
who acts on behalf of such a person’
(my
emphasis).
It
however also does not follow that a person who was not the original
thief cannot in appropriate circumstances where he exercises
control
over the stolen car with knowledge of the theft, be guilty of theft.
Thus in
R
v Brand
[51]
where the accused exercised control over a stolen vehicle jointly
with the original thief who continued to control the vehicle,
the
theft continuing whilst it is under his control, it was held that:
‘
Where
one only of two persons has stolen a car and thereafter, the other
being aware that it is a stolen car, they join in a venture
in which
the car is made part, as it were, of the joint capital, so that the
control over it is exercised on behalf of both of
them, it may be
assumed that even if the original thief continues to do all the
driving, his partner would also be guilty
of theft as from the time
when the venture came into operation
’
.
[21]
In
Brand’s
case the ‘original’ thief
remained in possession and control of the stolen vehicle, and the
physical act of the theft
or
actus reus
continued with the
other culprit then joining in that continuing criminal deed with the
required knowledge that it was a stolen
vehicle, and with the
mens
rea
to permanently deprive the true owner of ownership.
In
casu
, there is no evidence identifying the thief or thieves who
initially stole the vehicles from their owners as being amongst the
accused. Accordingly, there can be no continuing act of taking to
deprive, to which the accused, assuming them to have known of
such
thefts, can become a party by assuming joint control thereof as part
of the ‘joint capital’.
[22]
Mr Selepe accepts that when the original thief / thieves took control
of the motor vehicles for the purpose of appropriating
them for
themselves and to permanently deprive the owners of their motor
vehicles, the crime of theft was complete. He argues however
that
‘the intervention by the persons (accused) who followed them as
possessors of the vehicles, which led to the abandonment
of the motor
vehicles at the robbery scenes, does not undo the theft of those
motor vehicles and does not absolve the accused from
criminal
liability’. I cannot, with respect, agree with that submission.
Even if it is accepted as correct that it is an
integral part of any
robbery as
in casu
, to the knowledge of those involved in its
planning, that stolen vehicles would have to be sourced and used as
‘stopper’
vehicles, as vehicles to ram the Fidelity
vehicles off the road, and as get-away vehicles to avoid detection,
it does not render
all the accused guilty of some continuous crime of
theft of the vehicles by persons who remain unidentified, but could
at most
render them guilty of possession of stolen property knowing
it to be stolen, an offence they were not charged with but which
could
have been a competent verdict to theft in terms of
section
264(1)(a)
of the
Criminal Procedure Act 51 of 1977
.
[23]
None of the accused was found to have been one of ‘the original
thieves’. There was no evidence that they had participated
in
the theft of the vehicles, or that they had acted on behalf of the
original thieves or anyone who had participated in the original
thefts. On that basis alone the convictions on counts 1 to 4 cannot
be sustained.
[24]
However, also in regard to the requirement that the accused allegedly
knew that the vehicles were stolen, the State failed
to discharge the
onus of proof.
[52]
The
Mercedes Benz (count 1) was stolen in Gauteng on 7 February 2006
several months prior to the offences in question. It had travelled
more than 40 000 km since being stolen. The BMW 730i vehicle (count
2) was also stolen in Gauteng. The Isuzu bakkie (count 3) and
the
Nissan bakkie (count 4) were stolen in KwaZulu-Natal on 12 and 13
September 2006 respectively. Some of the accused are from
Gauteng,
others from KwaZulu-Natal. No legally justifiable inferences
can be drawn. Having regard to the time when the vehicles
were
stolen, the present was also not an instance of the stolen vehicles
being found in the possession of the accused such a short
time after
the thefts were committed as to give rise to the inference that it
was necessarily the accused who stole the vehicles,
as the only
legally justifiably factual inference.
[53]
It also cannot be inferred from those facts as the only reasonable
inference that any of the accused knew of the theft of vehicles.
[25]
Even a suggestion that it must be inferred from the descriptions of
the robbery and attempted robbery that the accused who
admit guilt or
were found guilty of the robbery and attempted robbery were at the
time of the robbery in possession of the vehicles
referred to in
counts 1 to 4, is subject to some criticism. Mr Slabbert points out
that the reasoning of the trial court in regard
to the BMW motor
vehicle in count 2, as having been used in the Charters incident,
appears mistaken.
[54]
Such
mistake is however immaterial to the conclusion reached in this
appeal and will not be considered further in any detail.
[26] Further, even
accepting in favour of the State that the four vehicles in counts 1
to 4 were used in the robbery and attempted
robbery and generally
that robbers would know that stolen vehicles are required for that
purpose to avoid detection, the only justifiable
inference to be
drawn is not only that it was the accused who stole the vehicles.
Possession of the vehicles could have been obtained
through some
fraudulent scheme and/or possibly with the intervention of middle
men. Even if the accused required suitable vehicles
to commit the
crimes, rather than one or more steal the vehicles themselves, one or
more of them might equally have purchased or
through some other
transaction acquired the vehicles to use in the robbery. More than
one possible inference can arise. The doubt
that exists is reasonable
and the accused must get the benefit thereof. The convictions and
sentences on counts 1 to 4 accordingly
fall to be set aside and
substituted with a finding that the accused are all found not guilty
and are discharged on those counts.
THE
CHARGES UNDER THE FIRE ARMS CONTROL ACT – COUNTS 27, 28 AND 29
RELATING TO THE RIFLES, AND COUNT 30 RELATING TO AMMUNITION,
FOUND IN
THE WHITE TOYOTA CONVEYING ACCUSED 2, 3, 4, 6, 9, 11. 13, 15, 17, 18,
21, 23 AND 24 AT THE TIME OF ARREST:
[27]
These charges relate to the automatic rifles and ammunition found at
Mvoti in the white kombi occupied by accused number 24
(the driver),
2, 3, 4, 6, 9, 10 (now deceased), 11, 13, 15, 17, 18, 21 and 23. Mr
Selepe, on behalf of the Respondent, conceded
that these convictions
could not be sustained. That concession was correctly made for the
brief reasons set out below.
[28] The trial court
found:
‘
According
to the evidence the rifles were observed in the white kombi
immediately after the vehicle was stopped by the police at
the Umvoti
tollgate. They were protruding from the top of an open bag on one of
the seats in the rear of the kombi’.
And further:
‘
In
the result we hold that the accused in the white kombi were in joint
possession of the rifles as envisaged by the prohibition
or, whoever
was in actual possession of the rifles did so within the ambit of
their common purpose to rob and to possess the rifles.
Given
the position and
visibility of the bag
with the rifles protruding from it
on
the seat of the kombi, all the accused in the vehicle will have seen
the firearms. After all, there was no ordinary luggage
in the
vehicle’.
(my
underlining)
[29]
The finding that the rifles were protruding from the top of an open
bag is however not supported by the evidence. None
of the
witnesses claimed that the firearms were protruding from the top of
an open bag. Inspector J J Dean, who was the first policeman
to enter
the kombi testified:
‘…
en
dan op die tweede sitplek agter die bestuursitplek het ek nog ‘n
swart sak waar geneem een van hierdie groot kleresakke.
Binne in die
sak was daar een LM6 geweer en twee magasyne.
Daar
was twee AK 47 gewere.’
Further on his evidence
revealed the following:
‘
Now,
when you saw the bag, did you see anything that was suspicious or
that raised your eyebrows or were you just curious to see
what's
inside? Die eerste sak of
tweede?
No,
no, the second one.
Die tweede een.
Ek het net gaan kyk wat is in die sak
om seker te maak ...[onhoorbaar].
Say for instance a butt
of a firearm was sticking out, you would have seen it?
Ja.
You
didn't see anything like that?
Nee, ek het geen vuurwapens gesien `uitsteek ...[onhoorbaar].
Ek het net gekyk wat is in die sak.’
Dean
was thus the first one to inspect the bag and did not claim that the
fire arms were ‘protruding from the bag.
Inspector Herbst, who was
with Dean, testified:
‘
Inspekteur
Dean het die sak
oopgemaak
en na verdere ondersoek gevind dat daar drie vuurwapens in die sak
was.’
(my
underlining)
Mncube testified:
‘
Yes.
--- The third thing that I saw was a big bag that was black in
colour, the one when I threw my eyes in I then saw
that it contained
big firearms.
MR
SLABBERT
Right, now just
explain to the Court that, how your threw your eyes in.
COMBRINCK
J
Before we get to that
intricate question, could you say, was the – when you saw the
bag first was it unzipped or zipped, or
was it buttoned, or how did
it work? It was unzipped.
And were rifles
protruding from it?
No, there were
not protruding
because it was a big bag
that could …[intervention]
It was
a long bag. --- Yes, that could …[intervention]
MR
SLABBERT
You had to open
the bag to see what’s inside. --- It was in fact
open, so for me it was to make that gap more
so as to see clearly’.
(my
underlining)
[30]
Doubt accordingly exists as to whether all the accused in the white
kombi could have seen that the bag contained rifles. They
certainly
would not have had such knowledge from simply looking at the bag, as
it was closed and nothing protruded therefrom.
[31]
Furthermore, the aforesaid factual misdirection as to whether the
firearms were protruding from the bag apart, it is doubtful
that
there was an evidentiary basis to conclude, as a matter of law, that
the state proved beyond a reasonable doubt that the accused
in the
white kombi were in joint possession of the fire arms.
[32] The trial court
held:
‘
When
the facts outlined above are collectively considered against the
requirements of the doctrine of common purpose, I have no
doubt that
the possession of the rifles in
casu
,
was well within the ambit of the doctrine in so far as those
principles are relevant to this case’.
[33]
In
S
v Mbuli
[55]
it was however held that possession of firearms will exist
simultaneously in respect of more than one person if they have common
(or joint) possession of the offending article, and that a
contravention of the relevant section in those circumstances does not
arise from the application of principles applicable to common purpose
at all. Nugent JA held:
‘
Perhaps
Olivier JA had in mind the principles of joint possession, rather
than the doctrine of common purpose, when he said in
S
v Khambule
2001 (1) SACR 501
(SCA) at
para [10] that there is no reason in principle why a common intention
to possess firearms jointly could not be established
by inference,
but I do not agree with the further suggestion that a mere intention
on the part of the group to use the weapons
for the benefit of all of
them will suffice for a conviction. In my respectful view, Marais J
set out the correct legal position
(apart from a misplaced reference
to common purpose) when he said the following in
S
v Nkosi
1998 (1) SACR 284
(W) at 286h -
i:
“
The
issues which arise in deciding whether the group (and hence the
appellant) possessed the guns must be decided with reference
to the
answer to the question whether the State has established facts from
which it can properly be inferred by a Court that:
(a) the group had the
intention (animus) to exercise possession of the guns through the
actual detentor and
(b) the actual detentors
had the intention to hold the guns on behalf of the group.
Only
if both requirements are fulfilled can there be joint possession
involving the group as a whole”’.
[34] In
S v Mbuli
supra a pistol and hand grenade were found wrapped in a jersey on one
of the occupants of the vehicle. Nugent JA held:
‘
I
do not agree that the reasonable inference from the evidence is that
the accused possessed the hand grenade jointly. It is equally
possible that …the hand grenade was possessed by only one of
the accused. Mere knowledge by the others that he was in possession
of a hand grenade, and even acquiescence by them in its use for
fulfilling their common purpose to commit robbery, is not sufficient
to make joint possessors for purposes of the Act. The evidence does
not establish which of the accused was in possession of the
hand
grenade and on that charge, in my view, they were entitled to be
acquitted’.
[56]
[35]
In
S
v Kwanda
[57]
the Supreme Court of Appeal stated:
‘
[4]
The only question on appeal is whether the state had established that
the appellant possessed the firearm jointly with Mahlenche.
In this
regard the state must prove that the appellant had the necessary
mental intention (animus) to possess the firearm.
I accept, for
the purpose of this judgment, that the appellant conspired with his
co-accused to rob the bank.
[5] The fact, that the
appellant conspired with his co-accused to commit robbery, and even
assuming that he was aware that some
of his co-accused possessed
firearms for the purpose of committing the robbery, does not lead to
the inference that he possessed
such firearms jointly with his
co-accused. In
S v Nkosi
Marais J said that such an inference
is only justified where 'the state has established facts from which
it can properly be inferred
by a court that:
(a)
the group had
the intention (animus) to exercise possession of the guns
through the actual detentor and
(b)
the actual detentors had
the intention to hold the guns on behalf of the group'. Nugent
JA, in
S v Mbuli
, referred to the above- quoted passage from
Nkosi
and commented that Marais J had 'set out the correct
legal position'. In
Mbuli
the appellant and his two
co-accused were charged with and convicted of being in possession of
a hand grenade that had been
found in their vehicle shortly
after they had robbed a bank (this is the only charge of relevance to
this matter). Nugent JA found
that the evidence did not establish
that the appellant and his co-accused had possessed the hand grenade
jointly and that it was
possible that the hand grenade had been
possessed by only one of them. Nugent JA concluded with these words:
“
I
do not agree that the only reasonable inference from the evidence is
that the accused possessed the hand grenade jointly. It is
equally
possible that, like the pistols, the hand grenade was possessed by
only one of the accused. Mere knowledge by the others
that he was in
possession of a hand grenade, and even acquiescence by them in its
use for fulfilling their common purpose to commit
robbery, is not
sufficient to make them joint possessors for purposes of the Act. The
evidence does not establish which of the
accused was in possession of
the hand grenade and on that charge, in my view, they were entitled
to be acquitted.”
[6]
Adopting the reasoning in
Nkosi
and
Mbuli
,
and even if the appellant was aware that Mahlenche was in
possession of the firearm, such knowledge is not sufficient to
establish that he had the intention to jointly possess the firearm
with Mahlenche. In this matter there are no facts from which
it can
be inferred that the appellant had the
intention
to exercise possession of the firearm through Mahlenche or that the
latter had the intention to hold the firearm on behalf
of the
appellant.’
(footnotes
omitted)
[36]
The legal position has now been summarized by Van Oosten J
[58]
in
S
v Zumani and others
[59]
as follows:
‘
The
principles applicable to joint ownership have authoritatively been
dealt with, laid down and explained in a trilogy of cases:
the ratio
in
S v Nkosi
1998 (1) SACR 284
(W) was approved in
S
v Mbuli
2003 (1) SACR 97
(SCA) ([2002]
ZASCA 78) and thereafter explained and summarised by Joffe J in
S
v Motsema
2012 (2) SACR 96
(GSJ) in
para [29] as follows:
“
I
therefore conclude that, on the basis of
S
v Nkosi
and
S
v Mbuli
, the law may be stated as
follows:
1. There is no rule of
law to the effect that, when an armed robbery is committed by two or
more persons with a common purpose to
commit an armed robbery, joint
possession of the weapons used in the robbery is to be inferred.
2. Joint possession of
the weapons can only be inferred if the facts proved leave no room
for any reasonable inference other than
that:
(a) each participant in
the common purpose to rob, who had physical control of a weapon,
intended not merely to use it, but also
to possess it, both for
himself and also on behalf of one or more other participants; and
(b)
each alleged joint possessor, who did not himself have physical
control of a weapon, intended that one or more of the weapons
should
not merely be used, but should also be possessed by another
participant on his behalf.”’
[37]
The trial Court
in
casu
commented that:
[60]
‘
To
answer the question whether all the accused, alternatively all
fourteen of the accused in the white kombi, could be said to have
had
possession of the rifles at the relevant time, the circumstances
which led to the presence of the rifles in the vehicles, needs
to be
considered…
The
use of automatic rifles played a pivotal role in the robbery at
Charters and the attempted robbery at Penicuik. In both
cases
the moment the Fidelity vehicles came to a rest after being capsized,
the assailants appeared out of nowhere, as it were,
and
simultaneously gunfire erupted from the assailants, using rifles.
At and around the upended vehicles in both cases the
rifle fire was
clearly used as a show of force
in
terrorem
, presumably to convey to the
crew that resistance was futile and potentially fatal. At
Penicuik the rifles were only used
on the overturned vehicle itself,
when the crew refused to open the driver’s cab and the bin.
So too, in the case of
the hijacking of Masango’s motor vehicle
and the kidnapping of his daughter (Counts 18 and 20). Aside
from pointing
the rifles at the Masangos to subdue them the shots
fired there were not directed at Masango, but to instil fear.
The same
pattern manifests in the confrontation of Msweli and the
robbery of his car keys (Counts 16 and 17). The rifles were
pointed
at him but no shots were fired.’
The
Court then found that:
[61]
‘
We
are in no doubt that, if a single police motor vehicle on ordinary
patrol duties had routinely stopped the kombi, the accused
would
unhesitatingly have used the firearms to avoid arrest. Judging
from the way in which Constable Biyela
et
al
were fired upon at Charters and the
deceased and his fellow security officers at Penicuik, there can be
no doubt that the accused
would have tried to shoot their way clear.
In the latter event it is scarcely conceivable that the individual
accused would
carefully have selected his own automatic rifle in
order to address the immediate threat and, even if he did so, he
would have
acted on behalf of himself and his fellow accused in the
white kombi. That action would have taken place in execution of
the common purpose to rob. A safe “getaway” is as
much part of the robbery as the events at the scenes of crime.
Besides, the money in the “smart” boxes in the Hyundai
still had to be removed from the boxes and shared.’
And
that:
[62]
‘
In
the result we hold that the accused in the white kombi were in joint
possession of the rifles as envisaged by the prohibition
or, whoever
was in actual possession of the rifles did so within the ambit of
their common purpose to rob and to possess the rifles.
Given
the position and visibility of the bag with the rifles protruding
from it on the seat of the kombi, all the accused in the
vehicle will
have seen the firearms. After all, there was no ordinary
luggage in the vehicle. They were in the vehicle
with the
firearms in it from the time they left the house of accused 24 at
Mzingazi all the way to the tollgate where they were
arrested, about
120 kilometres and a little over one hour apart.’
[38]
The trial Court analysed and compared the cases mentioned above, and
sought to distinguish the facts of this case from those
in
Mbuli
.
The learned judge said:
[63]
‘
As
I understand the reasoning of NUGENT JA in point, the qualification
which he placed on the decisions in both
Khambule
and
Nkosi
,
is that those courts in reality were dealing with the question of
joint possession of the firearms and not possession as part
of a
common purpose, as the latter “is concerned with liability for
joint activity” and that “a mere intention
on the part of
the group to use the weapons for the benefit of all of them”,
is insufficient to sustain a finding of common
purpose.
The
facts in
Mbuli
differ fundamentally from the facts
in casu
,
as in this case our findings as recorded above in regard to common
purpose and joint possession, are not founded on such a narrow
compass and are, accordingly distinguishable from the facts outlined
in
Mbuli
and NUGENT JA’s qualification of the
decisions in
Khambule
and
Nkosi
. With regard to
the first-mentioned case, a hand grenade, like a handgun, will not be
left to roll around loose, but in all
probability would be on the
person of a single possessor’.
[39]
In my respectful view, the facts
in casu
although different,
are not distinguishable so as to render the
ratio decidendi
in
Mbuli
inapplicable. Taking due cognizance of the factual
misdirection regarding the visibility of the rifles in the bag which
clearly
featured prominently in the court’s reasoning, the
reality that the rifles were not visible, and that the bag was one
which
a single but unidentified accused could have carried on to the
vehicle, makes the position hardly distinguishable from the position
of a hand grenade which could also have been withheld from view.
[40] The accused must get
the benefit of the doubt in this regard. Accordingly, the convictions
and sentences in respect of these
counts cannot stand and must be set
aside.
WHETHER
ACCUSED 1, 6, 7, 14, 20, 22, 24 and 25 SHOULD BE CONVICTED ON COUNT 6
RELATING TO THE ATTEMPTED ROBBERY AT PENICUIK:
[41] These accused have
admitted their liability in respect of the robbery at Charters but
not in respect of the attempted robbery
at Penicuik. In respect of
the attempted robbery at Penicuik the trial court found:
‘
As
to the identity and criminal liability of the perpetrators none of
the accused was proved beyond reasonable doubt to have been
present
at the primary scene at Penicuik’.
[42]
The issue then specifically is whether these accused, represented by
Mr Slabbert and who had admitted liability in respect
of the robbery
and the secondary offences at Charters (limited to only counts 10 and
11) and whose cell phone records place them
at or near Charters
(which means they could not simultaneously have been at Penicuik) can
be guilty of the attempted robbery at
Penicuik when they could not
have been present physically.
[43] The only possible
basis upon which criminal liability can be imputed to them would be
common purpose, or possibly some conspiracy
or incitement. The
prosecution has not relied on any conspiracy or incitement.
Accordingly, the court
a quo
correctly remarked:
‘
In
the absence of evidence that any of the accused directly took part in
or was present at the scene of the attempted robbery, the
prosecution
relies solely on the principles of common purpose to prove that the
accused were party to the common design to rob
the Dyna on 2 October
2006’.
After considering all the
evidence the trial court concluded:
‘…
we
hold that the accused shared a common purpose to rob the Dyna at
Penicuik’.
[44]
Mr Fraser objects to this conclusion of the trial court seemingly on
the basis, if I understand him correctly, that the finding
that there
was a prior agreement to commit the robberies at both scenes, was no
basis to find that there had been a common purpose.
This conclusion
he argued (more strongly in his heads of argument, but with less
force during his address), failed to maintain
a clear distinction
between two categories of joint criminal enterprise; in his view a
shared purpose being nothing other than
a prior agreement, but not
constituting a common purpose. This submission was foreshadowed in a
bit more detail in his heads of
argument where he submitted that the
State and the court
a quo
confused the application of the
common purpose doctrine with a conspiracy to commit the crimes of
which the accused were convicted.
When pressed during argument he did
not however persist with this submission, and in my view clearly
correctly so. The court
a quo
was clearly correct in dealing
with the matter on the basis of common purpose. That is what the
State alleged in the indictment
and it is also the basis upon which
the accused presented their defence. The accused were not taken by
surprise and were not prejudiced
in any way.
[45] The confusion to
which Mr Fraser alludes arises, I would respectfully venture to
suggest, from a failure to clearly distinguish
the different forms
that common purpose may take. These include notably:
(a)
Common purpose where there is a prior agreement amongst co-accused to
commit a crime, in which instance all the participants
will incur
criminal liability, even if they are not present at the scene of the
crime. It was held in
S
v Thebus
[64]
that where two or more people agree to commit a crime or actively
associate in a joint unlawful enterprise, each will be responsible
for specific criminal conduct committed by one of their number which
falls within their common design. Liability arises from their
‘common
purpose’ to commit the crime.
[65]
Where co-accused are charged with having committed a ‘consequence
crime’, it is not necessary for the prosecution to
prove beyond
reasonable doubt that each participant committed conduct which
contributed causally to the ultimate unlawful consequence.
[66]
It is sufficient that it is established that they all agreed to
commit a particular crime or actively associated themselves with
the
commission of the crime by one of their number, with the requisite
fault element (
mens
rea
).
If this is established, then the conduct of the participant who
actually causes the consequence is imputed or attributed to the
other
participants and it is not necessary to establish precisely which
party to the common purpose caused the consequence, provided
it is
established one of the group brought about this result.
(b)
Common purpose, where there is no prior agreement amongst co-accused
but they spontaneously join in or participate in the commission
of a
crime. This is the situation that was dealt with in
S
v Mgedezi
[67]
here the Appellate Division held that in the absence of proof of any
prior agreement; liability can only arise if certain pre-requisites
are satisfied, namely:
(i) The accused must have
been present at the scene where the crime was committed;
(ii) The accused must
have been aware of the crime;
(iii) The accused must
have intended to make common cause with those who were actually
perpetrating the crime;
(iv) The accused must
have manifested his sharing of the common purpose with the
perpetrators of the crime by himself performing
some act of
association with the conduct of the others;
(v)
The accused must have had the requisite
mens rea
.
[46]
The Appellate Division in
S
v Mgedezi
[68]
drew this distinction between common purpose liability where there is
a prior agreement, expressed or implied, to commit a crime
(a mandate
situation) and instances where there is no such prior agreement. In
the last-mentioned situation, the additional requirements
outlined
above have to be satisfied before the principle of imputation, which
is the characteristic of common purpose liability,
can arise. The
Constitutional Court in
S
v Thebus
[69]
upheld the constitutional validity of the common-purpose rule as set
out in
S
v Mgedezi
.
Both the Appellate Division and the Constitutional Court confirmed
that the liability of a participant in a common purpose to
commit a
consequence crime is not dependent upon the proof of a causal
connection between the act of
every
participant in the common purpose and the eventual unlawful
consequence. This means that before embarking on an examination of
causal questions in consequence crimes one must first determine the
extent of the causal enquiry by assessing whether participation
in a
common purpose is involved or not. If participation in a common
purpose is involved, then a factual and legal causal link
between the
conduct and unlawful consequence need only be established in regard
to at least one of the participants, whoever he
or she may be. His or
her causal contribution is then attributed to the others in terms of
the common purpose doctrine.
[47]
Patently the requirements of
Mgedezi
cannot apply where it is physically impossible for the accused to be
present at both Charters and Penicuik at the same time. To
establish
a link between the offences at Charters and Penicuik and the various
accused, the State accordingly relied on the accused
jointly having
formed a common purpose
[70]
to
commit the crimes, ‘in the furtherance of the execution of a
common purpose’ embarked upon by the assailants. In
argument,
Mr Selepe submitted that the present is a combination of the two
types of common purpose; it being primarily a mandate
(prior
agreement) situation although there are also aspects of active
collective participation, where the inference of active involvement
and participation in some of the crimes by some of the accused is
irresistible. I am not persuaded that the latter necessarily
applies.
In any event, in the absence of any evidential basis as to the actual
presence and degree of participation by any one
of the accused in the
different crimes, it seems to me that there is no basis to find a
common purpose on the basis of participation.
The state is in my view
confined, at best, to establishing the guilt of the accused on the
basis of a prior agreement to commit
the robberies. This then raises
issues as to the existence, nature and ambit of such prior agreement.
[48] The existence of
such a prior agreement, and its ambit, purview and parameters, are
all matters for inference from the surrounding
circumstances. The
trial court quite correctly pointed out that:
‘
Whether
or not the accused acted pursuant to or in execution of a common
purpose to rob the Fidelity vehicles
,
and
,
in order to do that successfully
,
to also commit the secondary offences
,
is a question of fact and may be inferred from their associative
conduct before
,
during and after the commission of the offences and must be
determined on the evidence as a whole’.
[71]
It
held that:
‘
In
the result, there can be no doubt whatsoever that all the accused and
the accomplices
,
save accused 12
,
acted collaboratively and concertedly towards the attainment of a
single purpose common to all of them to rob the two Fidelity
vehicles
.
We
accordingly hold that the principles of the doctrine of common
purpose apply
.
In
the result
,
the actions of any participant in the execution of the
cash
-
in
-
transit
robberies and the secondary offences to be referred to here below
,
are imputed to all the participants in the common purpose
.
”
[72]
[49] As regards a prior
agreement and hence common purpose in respect of the robbery at
Charters and the attempted robbery at Penicuik,
the trial court
cautioned that:
‘
To
sustain that contention the State is required to prove beyond
reasonable doubt that both the robbery and the attempted robbery
were
common objectives of the perpetrators of the respective offences’.
The two offences, the
robbery and attempted robbery, having occurred contemporaneously,
some 31 km apart it followed as a matter
of logic, as was held, that:
‘
Accordingly
the perpetrators of the robbery of the Hi-Ace could not have taken
part directly in the attempted robbery of the Dyna
and vice versa.
From that it would follow that the two offences were either unrelated
or committed by members of the same gang
of perpetrators, who had
divided their forces to achieve the same goal, ie the robbery of the
Hi-Ace and the Dyna’.
Any notion, as suggested
by the defence, that these were two totally unrelated robberies can
safely be rejected. All the indications
are that the offences were
committed by members of the same gang of perpetrators. The learned
trial judge correctly found:
‘
We
disagree with that. In our view,
prima
facie
at this point, the offences at Charters and Penicuik and the
perpetrators thereof are inextricably bound and the offences occurred
during the execution of a common purpose between the accused that are
before the Court and certain other accomplices who are not.’
[73]
[50]
The following reasons were justifiably and correctly advanced by the
trial Court in support of that finding:
[74]
1. The
areas where the Fidelity vehicles were rammed and overturned were
clearly chosen with care
.
At
both scenes, the road was straight and flat.
[75]
2. In each case, the
terrain on the sides of the road was wide and level with the road
surface and free of possible impediments
,
such as culverts
,
drainage ditches
,
rocks or the like
,
which would make
access to the cash in transit vehicle and the extraction of the loot
difficult
.
3. The relevant stretches
of road had plantations on either side or places such as bridges and
side
-
roads
,
where the vehicles which conveyed the
robbers and their firearms, equipment
,
and tools to break into
the capsized vehicle could be kept out of sight
.
At
Penicuik it was the plantation road where the stolen vehicles were
abandoned and the deceased killed
.
It is common cause
that the distance between the plantation road and the point where the
Dyna was capsized is approximately 700
metres
.
In
testimony Sithole estimated this distance at 500 metres
.
At
Charters, it was a bridge marked “L” from which the
plantation leads to where the BMW
,
which was used to ram
the Hi-Ace was abandoned
.
In addition, blood samples
were obtained which matched the blood of accused 25 on DNA analysis
.
4. The evidence was that
the vehicles
,
which were abandoned in the
plantation at Penicuik
,
drove directly to it at speed
.
The perpetrators knew exactly where the road was
,
given
that it was deep dusk, overcast, and raining intermittently at the
time
.
5. The areas in which the
“stopper groups” and their vehicles to be used in
controlling the traffic on both sides of
the scene of the crime had
to be determined
.
At Charters, Constable Biyela was
hemmed in and shot at by members of such a group
.
At
Penicuik, Msweli (in the Opel Corsa) was stopped on the northern side
of the crime scene by a “stopper group” using
the white
Nissan 1 Tonner, subsequently abandoned on the plantation road where
it was identified by Sithole as one of the vehicles
which he had
followed to accused 24’s house that morning. The “Telkom”
LDV and the “police” kombi
appear to have fulfilled that
role on the southern side of the Penicuik crime scene
.
These
two bogus vehicles used the plantation road to keep out of sight
.
The selection of the two crime scenes in question demonstrates
that the robbers were aware of the practice employed by the two
Fidelity
vehicles upon their return from their collecting rounds in
the northern part of Zululand
.
Thus they were aware
that the Hi
-
Ace and Dyna travelled in tandem all the way to
Petroport and that the Hi
-
Ace would turn into Petroport whilst
the Dyna continued driving on towards Richards Bay
.
The
distance of the two scenes from each other is obviously determined by
the distance the Dyna would have travelled from the time
that the
Hi
-
Ace turned off into the Petroport filling station
.
Accordingly the perpetrators would have endeavoured to calculate
the area in which the Dyna was likely to be
,
given its
probable speed and the time it took to Penicuik
.
As it
happened later
,
the attacks on the Hi
-
Ace and the Dyna
took place more or less contemporaneously at Charters and Penicuik
respectively
.
6. The assailants were
well informed of the return routes of the targeted Fidelity vehicles
and the expected contents
,
given that both vehicles were
returning from their cash collection rounds
.
Clearly the
gang as a whole were possessed of accurate and detailed “inside
information” in regard to the inner workings
at Fidelity and in
regard to the large amounts of money carried in their transit
vehicles. This was on a Monday following a month
-
end weekend
.
These vehicles were specifically targeted as they were both using
the same route at the time.
7. The robberies had to
take place at more or less the same time
.
Both vehicles
were carrying substantial amounts of cash and
,
for reasons
mentioned
,
driving apart
.
The selected ambush sites
were along the N2
.
If
,
for example
,
the Charters
robbery were to have taken place say
,
one hour earlier than
Penicuik or
vice versa
,
the N2 would have been teeming
with police vehicles as happened in reality shortly after the
robberies were reported
.
The risk of any substantial
time interval between the robberies was obviously too high and
required contemporaneity
.
8. Both the Fidelity
vehicles were incapacitated and immobilised in a similar way
.
A stolen motor vehicle
,
a 7
-
series BMW
,
was
used to smash into the travelling Fidelity motor vehicle in such a
way that its driver lost control of the vehicle
,
causing it to
leave the road and upend
.
Thereafter the
incapacitated vehicle would be broken into and robbed
.
9. Once the Fidelity
vehicle was incapacitated
,
the road on both sides would
be closed off by other members of the gang of robbers
.
The
traffic to arrive on the scene first would find a motor vehicle
stopped in their way, accompanied by heavily armed men
,
as in
the case of the witness, Msweli. The first arrivals would be
forced into submission and the later arrivals would encounter
motor
vehicles which had come to a. stop ahead of them
,
causing the
belief
,
as some of the evidence revealed
,
that
they had happened on an accident scene further ahead
.
For
the greater part, the motor vehicles used by the robbers to convey
them to the scene of crime and to immobilise the Fidelity
vehicles
were abandoned at or in the vicinity of the scenes of crime
.
On both crime scenes, stolen vehicles
were used, which in the nature of things could not be traced back to
the perpetrators.
In both instances, the scene of the crime was
located in an area with plantations on both sides of the road. The
motor vehicles
were abandoned on gravel roads inside the
plantations
,
except for the Mercedes Benz which was abandoned at the spot where it
was used to park in the police vehicle at Charters and where
accused
25 was shot
.
The
other vehicle which was not hidden was the 7
-
series
BMW used to ram the Dyna at Penicuik
.
This vehicle from the photographic
material indicates severe damage to the left front section thereof
,
caused by the force of the impact required to upend the heavy
armoured Dyna vehicle
.
This
vehicle, which was abandoned on the grass verge off the tar road at
the Penicuik scene, was clearly immobilised by the force
of the
impact
.
This
vehicle was depicted as point “C” on photo album “D”,
photograph 8, and bore the registration number
NJ […]7.
Earlier that day, it was seen by Sithole on the R34 bearing the
number plate KRY […]1 GP
.
That
number plate was seen by Sithole on the back seat of this vehicle
after it had been abandoned
.
10. According to the
evidence the scenes of crime were approximately 30 kilometres apart
,
and required approximately 15 minutes travelling time between
them
.
When the respective primary scenes of crime are
superimposed on the official Topo Cadastral Chart from the Surveyor
General
,
it becomes immediately apparent that a myriad of
back
-
roads exist
,
leading on to and away from the N2 at
those points
,
which could be used to reach Mtubatuba
,
Empangeni and the Richards Bay areas
.
In fact, the
Penicuik scene of crime is approximately 13 kilometres from a
short
-
cut along a well
-
maintained back road through the
plantation to Mzingazi where accused 24 lived, 18 kilometres away
.
11. The use of tools
specifically required for the task at hand
,
namely the
petrol
-
driven angle grinder or power tool with special blades
for cutting steel and hardened steel
,
suggested that the
perpetrators no doubt knew beforehand that one of the targeted
victims was an armoured vehicle
.
The other tools used were an
axe and a heavy hammer, ideal for penetrating the roof of the Hi
-
Ace
at Charters
.
The Isuzu LDV abandoned at the Penicuik
scene had an axe and a hammer in the bin thereof.
12. Similar types of
firearms were used at both crime scenes namely fully automatic
assault rifles
.
The plan was clearly to nullify any opposition
by sheer fire power
.
A heavy calibre rifle was also used
to penetrate the armour of the Dyna vehicle at Penicuik. Although not
established by ballistic
linking, this was probably the
.
416
Weatherby rifle later found in the abandoned cache of firearms at the
bus shelter at Nseleni. Some of the rifles found in that
cache were,
by unchallenged ballistic evidence, found to have been used in the
Charters robbery.
13. On both scenes false
number plates were used. This is proved by the Mercedes at Charters
and the BMW at Penicuik
,
if one compares the registration
plates recorded by Sithole
en route
on the R34 from Eshowe to
accused 24’s house
.
During the police search of
accused 24’s house a number of loose registration plates were
also found.
14. No fingerprint was
identified amongst all the vehicles involved in this case
,
numbering some fourteen
.
One has to couple this fact
with the extraordinary number of gloves found in the arrested motor
vehicles and on the accused persons
– this during early summer
in the warm climate of Zululand
.
15. “Stopper
groups” were employed as an essential and integral part of the
operations to allow the actual robbers undisturbed
access to the cash
vehicles after they had been capsized
,
and to prevent any
persons or vehicles to access the scenes of the upturned
vehicles
.
The stopper groups were heavily armed and well
organised. They were prepared to shoot to kill where necessary
,
as was apparent from the attacks on the police vehicle at
Charters
.
Where no resistance was offered they simply,
under the threat of firearms, took keys (as in the case of
Msweli)
,
or in the case of Masango and his daughter, a motor
vehicle.
16. In order to erase
suspicion, the perpetrators used what appeared to be Telkom and
police vehicles
,
with other paraphernalia
,
such as
reflective jackets
,
emblems, etc.
17. There can be no doubt
that a larger group than those that were arrested was involved
.
Simple arithmetic shows that an amount of approximately R1
million was stolen at Charters and only R661 000.00 recovered from
the
possession of the accused
.
18. The Penicuik and
Charters scenes are bound as one unlawful enterprise. This is
confirmed by the fact that two of the vehicles
observed and
identified by Sithole and followed by him to accused 24’s house
were abandoned at Charters, that is the Mercedes
Benz with the worn
tyre and the one BMW with accused 25’s blood on it
.
This
BMW was identified by Sithole in photograph B31. It is also depicted
on photograph L 101
.
This particular BMW was depicted in
the photograph with its back window-blind drawn
,
a fact
observed by Sithole when following the convoy through Empangeni that
morning
.
He mentioned that the blind had been drawn by a
back
-
seat passenger when the vehicle had stopped at a red
robot with him behind it
.
The other two vehicles, also
identified and followed by Sithole
,
the Nissan 1 tonner and
the other BMW with the white cloth petrol cover, were abandoned at
Penicuik
.
This BMW did not have a drawn rear blind
according to the photographic evidence. These above facts
inextricably bind the two
crimes as one, as well as demonstrating
that the robbery and attempted robbery were committed by one gang,
operating from
accused 24’s house
.
19. The probabilities
overwhelmingly favour the inference that the four suspect
vehicles encountered by Sithole on the R34,
were driven to accused
24’s house by the Johannesburg group of accused. The cell phone
communications between the accused,
slot in perfectly with Sithole’s
evidence as to how he followed the four vehicles from Jabulani (the
Horseshoe Sugar Estate
tower) right up to accused 24’s house.
Collectively the facts above point to the inference that the four
vehicles were ferried
down from Johannesburg by those accused to be
employed in the intended robberies at both Charters and Penicuik.
20. It must also be borne
in mind that the Johannesburg group, the Durban group
,
and
certain accomplices, “fused” as it were at 24’s
house before the scouting excursion. The second excursion
placed
those involved at the Charters scene of crime. Thereafter they again
gathered at accused 24’s house where the spoils
were shared.
21. The meticulous way in
which the robberies were planned and executed leads one to the
inevitable conclusion that the participants
must have gathered at one
place to finally muster their forces and finally assign various roles
before departure on the unlawful
mission. This points unerringly to
accused 24’s house as the meeting place
.
His house was
ideally suited for that purpose, being in a back street in a rural
area, but easily accessible to the crime
scenes and escape
routes.
22. The conclusion that
one gang was involved in both crimes, is further supported by the
number of vehicles available to the perpetrators
to return home. The
following vehicles appear to have been involved and were available:
The bogus white police kombi and the Telkom
LDV; the vehicle used to
convey accused 25 to hospital; the vehicle that turned around and
sped away from the scene of arrest;
Spiwet’s vehicle (his cell
phone records show that from Richards Bay he travelled to Durban –
Hammarsdale – Pietermaritzburg,
and from there on to Gauteng);
Mzet’s vehicle (which travelled from Richards Bay to the
Hluhluwe area (according to his cell
phone records); Msimango’s
vehicle (which according to his cell phone records travelled via
Melmoth to Gauteng); accused
26 (who on 3 October 2006 travelled to
Gauteng from accused 24’s house).
23. Compare the
aforegoing with the number of people arrested in the four vehicles
stopped at the Umvoti Plaza. Sight should
also not be lost of
the impact on the transport arrangements of the perpetrators, by the
six vehicles that were dumped at the two
scenes of crime.
24. The fact that the
robberies were clearly well planned and executed with military type
precision, leads one to the inference
that planning must have
occurred prior to 2 October 2006
.
The roles of the
participants could not have been allotted spontaneously if one has
regard to the
modus operandi.
25. Certain of the
perpetrators clearly escaped
,
taking routes other than the N2
south. Some of the other escapees could well have been in the
vehicle, which turned around at the
Mvoti Plaza and sped away from
the scene of arrest
.
26. To suggest that the
two scenes were purely coincidental as to time and method by two
separate groups or gangs
,
each unaware of the other
,
would unbearably stretch reason and logic
.
27.
Finally, if the robbery and attempted robbery were indeed committed
by two separate gangs operating independently, then the
conduct of
the accused, who were involved in the robbery at Charters, appears
totally at odds with that notion. The
cell phone records of the
accused involved at Charters reveal that all of them, on their return
to accused 24’s house, passed
the Penicuik scene of crime, at a
stage when the attempted robbery had just been aborted and, in
respect of some of them, after
the police had already arrived.
They could not have failed to see the upended Fidelity Dyna with its
distinctive green colour,
which was lying in the open. Anyone
would have realised that the Dyna which had passed them at Charters,
had been robbed
at Penicuik by a gang independent and unbeknown to
them. Given the accused’s continual cell phonic communication
between
them, as apparent from their cell phone records in point, one
would have expected a frantic exchange of calls between the accused
who had come across the Penicuik scene of crime. Instead, any
such expected flurry of calls is notably absent. What
the cell
phone records do show is that the accused appear to have lingered at
that scene before travelling on to accused 24’s
house at
Mzingazi.
[51]
I concur with and support the material aspects of that reasoning.
[52]
Some of the reasons might individually rightly be open to criticism,
as counsel have done. I have referred to some, but not
all, of those
criticisms in footnotes to the trial court’s reasoning so as to
not detract from the flow of this judgment.
Some of the reasons given
may be incidental to many robberies and hence not unique to this
case. However overall, the reasons listed
leave no reasonable doubt
that the two robberies were part of the prior agreement of the
members of one gang who had embarked on
a military styled operation
to rob the two Fidelity vehicles. Certainly, I am not persuaded that
the trial court erred in coming
to the conclusion that the accused
were all part of the prior agreement to rob the Fidelity vehicles at
Charters and Penicuik.
Particularly convincing to me, are the
following:
(a) That there was a
single gang of robbers involved in both robberies appears from
Sithole having seen some of the vehicles, notably
the Mercedes Benz C
series and BMW and Nissan LDV travelling together in what clearly was
a convoy with a single determined destination,
early on the morning
of 2 October 2006, and he followed them to where they all turned in
at the home of accused 24 at Mzingazi;
(b) Significantly, that
is the address where a police search after the robberies discovered
various bags and the like, which were
removed from the Fidelity
vehicles during the robbery;
(c) It is also the same
address from where Govender and Mncube followed the white kombi later
that evening, which kombi was eventually
stopped at Mvoti with large
sums of money in it, for which some of the accused do not give any
account at all, as they did not
testify.
(d)
Significantly, Govender and Mncube also observed the red kombi, blue
Hyundai and the dark BMW at accused 24’s home and
they all are
encountered again at Mvoti, travelling in the direction of Durban
later that evening, with large sums of money found
inside. All of
this is not simply a coincidence. The only irresistible inference, is
that the accused were all party to a prior
agreement to rob the two
Fidelity vehicles, by ramming them off the road, and shooting at or
threatening the occupants to achieve
that purpose and to overcome
resistance.
The
above all points to an interwoven web of association in the robberies
which point to the guilt of the accused, unless they could
advance an
explanation which could be said to be reasonably possibly true. They
failed to do so and accordingly their guilt in
respect of both
robberies was established.
[53]
Accused 1, 6, 7, 14, 20, 22, 24 and 25
[76]
have accepted guilt on counts 9, 10 and 11. It follows from what I
have said above, that the attempted robbery at Penicuik was
also part
of these self-confessed robbers’ prior agreement to rob the
Fidelity vehicles. They were accordingly correctly
convicted also on
count 6. The concession by accused 2, 9, 15, 16, 18, 21 and 23
[77]
who conceded guilt in respect of both counts 9 (Charters) and 6 (
Penicuik), was correctly made.
The trial court was
correct in concluding that:
‘…
the
accused … shared with the actual perpetrators the common
purpose to rob both the Hi-Ace and the Dyna’.
THE
POSITION OF VARIOUS REMAINING ACCUSED IN REGARD TO COUNTS 6 AND 9:
[54]
I next consider the legal position of accused 8, 13 and 26 (the
remainder of the accused represented by Mr Slabbert), accused
3, 17
and 19 (the remainder of the accused represented by Mr Fraser) and
accused 4, 5 and 11 (represented by Mr Seedat) in respect
of counts 6
and 9.
[55]
In
S
v Le Roux
[78]
the Supreme Court of Appeal, albeit in the context of common purpose
arising from active participation as
S
v Mgedezi and others
,
[79]
cautioned that a general and all-embracing approach regarding
multiple accused charged is not permissible. The position of each
accused must be considered individually, with a view to determining
whether there is a sufficient basis for holding him liable
on the
ground of common purpose. A view of the totality of the case cannot
legitimately be used as a brush with which to tar each
accused
individually, nor as a means of rejecting a defence version
en
masse
.
In
S
v Thebus
[80]
the Constitutional Court confirmed this approach. The position of
each accused must be considered separately and the onus always
remains on the state. That caution is similarly apposite in this
appeal.
[56] In what follows I do
not intend repeating all the considerations that persuaded the trial
court to convict the accused in respect
of those counts where
convictions were in my view proper. Needless to say my comments below
must be read with those reasons. I
shall only refer to some of the
considerations which to me pointed irrefutably to the guilt of the
accused, or where the convictions
are set aside, my reasons for
arriving at that conclusion.
ACCUSED
8:
[57] In respect of
accused 8 the trial court correctly found that
inter alia
:
(a) He was in the company
of accused 5, 20 and Xha from the time that he arrived in Richards
Bay and on the evidence of accused
20
,
he was in the latter’s
company in Durban for some time before their departure from there
;
(b) He made a number of
calls from the Richards Bay central business district at the same
time and places as accused 5, 20 and Xha.
His cell phone went silent
at 15h18 on 2 October 2006 and was never activated thereafter
.
The court found that he could have been at either of the scenes
of crime;
(c)
Mncube and Govender did not see who were in the blue BMW when it left
the house of accused 24, but the evidence established
that accused 8
was arrested in the company of accused 1 and 20 in the dark BMW at
Mvoti
.
Accused
8 was driving the dark BMW. When he was arrested R21 000 in cash was
found on his person
,
whilst his passengers accused 1 had R56 000 on his person and accused
20 had R35 890.
[81]
(d)
Although his phone appears to have been turned off, or the battery
was run down, from 15h18 onwards
,
the accomplice Spiwet tried
to contact accused 8 from Kwambonambi. These attempts extended to the
time that Spiwet and others involved
at Charters would have reached
the Penicuik area on their way back from Charters
.
The cell
phone records reveal a marked sparseness of communication between the
accused after the Charters robbery and their return
from that area
,
except for accused 9, 24 and accused 26.
[58]
Captain van Tonder testified that two days before these incidents
accused 8 had phoned him and alerted him to the possibility
of such a
robbery. Accused 8 was to get back to him. He never did and two days
later he was arrested at Mvoti. In response to a
question by Smith
from Fidelity to accused 8 whether he and the other accused were the
ones who had robbed Fidelity, accused 8
replied in the affirmative
and said there were others still coming towards Mvoti, which indeed
there were
[82]
as the
subsequent arrests evidence. Accused 5’s bank cards and flight
tickets
[83]
were discovered in
the dark BMW driven by accused 8. This BMW which he was driving is
owned by the wife of accused 20 who was a
passenger in the vehicle
with him. Accused 8 and 20 had travelled to near Durban earlier that
day to fetch accused 5 from the airport.
Accused 8 was clearly an
integral part of this group of accused.
[59]
Notwithstanding all the aforesaid and the inferences arising
therefrom, which clearly called for an explanation from accused
8, he
elected not to testify. It was not sufficient for him, as was argued,
to try and advance a version through accused 20.
[84]
He is required to advance his version himself for it to be tested in
cross examination and to have any probative value which would
rebut
the irresistible inferences arising from the above evidence.
[60]
An accused person is of course not obliged to testify. However in
that regard, the Constitutional Court in
S
v Boesak
[85]
held that:
‘
The
fact that an accused person is under no obligation to testify does
not mean that there are no consequences attaching to a decision
to
remain silent during the trial. If there is evidence calling for an
answer, and an accused person chooses to remain silent in
the face of
such evidence, a court may well be entitled to conclude that the
evidence is sufficient in the absence of an explanation
to prove
the guilt of the accused. Whether such a conclusion is justified will
depend on the weight of the evidence.
’
[61]
In
S
v Thebus and another
supra the Constitutional Court confirmed that the right to remain
silent has different applications at different stages on the
criminal
prosecution. On arrest a person cannot be compelled to make a
confession or admission that may be used against him
or her. At trial
there is no obligation to testify. The fact that he is not obliged to
testify does not mean that no consequences
arise as a result. In
S
v Mavinini
[86]
the Supreme Court of Appeal remarked that the accused’s choice
to remain silent in the face of the evidence clearly implicating
him
in criminal conduct suggests that he had no answer to it.
[62]
The defence argued that although the BMW was seen leaving the
residence of accused 24 there was no evidence as to who were
in the
vehicle and who was the driver of the vehicle and that in the absence
of such evidence the Court erred in arriving at the
conclusion that
accused 1, 8 and 20 were in the BMW when it left the house of accused
number 24. Accused 8 was however subsequently
arrested with accused 1
and 20 in the dark BMW sedan at the Umvoti toll plaza. In the absence
of any evidence from him, his presence
in the BMW with persons who
were clearly at Charters remains unexplained and there is no
explanation to the inference that he would
have started the journey
in the BMW with those he was indeed arrested with when the journey
for them ended at Mvoti.
[63]
I am satisfied for the reasons advanced by the court
a
quo
and those briefly alluded to above
that accused 8 was correctly convicted of counts 6 and 9.
ACCUSED
13:
[64] Mr Slabbert submits
that accused 13 did not have a fair trial in that:
(a)
The State used the statements of accused numbers 13 and 26 which were
ruled admissible by the court on 16 February 2009
[87]
and also what was stated by other co-accused in their statements
[88]
during cross-examination to discredit their evidence; more
specifically that what was stated in the warning statement was used
against these and other accused.
(b) No cell phone records
proved beyond a reasonable doubt to be those of accused 13 were
submitted during the State case. The State
had presented the evidence
of Supt Van Rensburg who stated the following in relation to accused
13;
‘
MR
SELEPE
Oh, cellphone
records for the accused. Before
Court. Yes. Some of the
accused provided you with their
cellphone numbers? They
provided us with cellphone numbers
when we obtained their warning
statements to get their personal particulars, where they stay, how
old they are, ID number, address,
contact numbers, and that’s
how we obtained some of the cellphone numbers.
Did you verify those
numbers as correct numbers furnished to you? I
verified the numbers,
and some of the accused before Court gave wrong
cellphone numbers at that time.
Is it wrong or false
numbers? Some are totally
wrong numbers, some are false that does
not even exist.’
Very
importantly further on Van Rensburg said:
‘
Accused
No 13, Johannes Langa, did not supply us with a cellphone number
and he was not in possession of a cellphone.’
There
was accordingly no reason for the trial court to reject the evidence
of accused 13 when he stated that he was not in possession
of a cell
phone and his explanation that his statement in his bail application
that he had a cell phone was wrong, accordingly
cannot be said not to
be reasonably possibly true.
(c) At
the close of the State’s case the only evidence against accused
number 13 was that he was a passenger in the white
kombi and he had
R1 250.00 in cash on him. That amount of money is not sufficiently
disproportionately high as to arouse suspicion.
He had no cell phone
with him and no cell phone records were submitted
[89]
in respect of accused number 13. The high water mark for the State
was that close to R80 000.00 in cash lay on the floor of the
taxi in
which he was arrested.
(d) It
was submitted by Mr Slabbert that this evidence was insufficient and
that accused 13 should have been discharged,
mero motu
by the
trial court if necessary, at the end of the State case.
(e) If
there is insufficient evidence on which a court acting carefully
could convict accused 13 at the end of the state case, then
he should
have been discharged pursuant to section 174 of the Criminal
Procedure Act, if necessary
meru
motu
.
In
S
v Lubaxa
[90]
at page 707 Nugent AJA held:
‘
I
have no doubt that an accused person … is entitled to be
discharged at the close of the case for the prosecution if
there
is no possibility of a conviction other than if he enters the witness
box and incriminates himself. The failure to discharge
an accused in
those circumstances … is in my view a breach of the rights
that are guaranteed by the Constitution and will
ordinarily vitiate a
conviction based exclusively upon his self-incriminatory evidence
.’
See
also
S
v Nkosi and another
.
[91]
(f) Mr
Slabbert accordingly submitted that the failure to discharge accused
13 resulted in him not receiving a fair trial. He argued
that accused
13 was prejudiced as the only reason why he was placed on his defence
was to supplement the State’s case and
to be cross examined by
the State.
(g) There is some force
in that submission. However, there was some R80 000.00 lying on the
floor of the vehicle in which he was
arrested. Whether that is
sufficient per se for a court acting carefully to convict, is a
difficult question. I incline to the
view that accused 13 was not
entitled to a discharge at the end of the State case. R80 000.00
is a substantial sum, in respect
of which he was required to provide
an explanation failing which a court could draw an inference that he
was part of the robbery
earlier that afternoon where a substantial
sum of cash was stolen. If his case had thereafter been closed
without leading any evidence,
in which case it is trite the enquiry
becomes one whether a court ‘should convict’, that
evidence
per se
would, in my view, be insufficient to sustain
a conviction. At the conclusion of the trial the trial court was of a
different view
and clearly influenced by the presence of the R80
000.00 in cash on the floor of the vehicle held that:
‘
Upon
his arrest with the other accused at Umvoti Plaza he had only R1 250
on his person but at his feet lay R80 000 in cash.
As addressed
earlier there can be very little doubt that he had shed his share of
the loot into the pool of money at his feet.
His claim to the
contrary apparent from his testimony will be evaluated at the
appropriate stage’.
That
inference by the trial court was not in my view justified based
solely on the presence of the R80 000.00, and more particularly
in the light of accused 13’s evidence. That aspect will however
be dealt with again below.
(h)
The focus then shifts
[92]
to
whether accused 13’s explanation as to how he came to be
present in the white kombi, could be reasonably possibly true.
He
testified that he was there as a passenger who had been picked up.
Ultimately, the trial court would have to be satisfied that
on the
evidence overall including his evidence, his version could not be
reasonably possibly true and that the inference sought
to be drawn
from the presence of the R80 000.00 is the only reasonable
inference to be drawn beyond a reasonable doubt.
(i) It
was only during the cross examination of accused 13 by the State that
accused 13 was confronted with certain cell phone numbers
alleged to
have been used by him. As with all the other accused, the cell phone
records pertaining to these cell phone numbers
eventually featured
prominently in the judgment to discredit accused 13. This cell phone
evidence was described as ‘new evidence’,
introduced by
the State only during the cross-examination of accused number 13, and
likened by Mr Slabbert to a trial ‘by
ambush’.
(j)
This evidence emerged as follows during the cross examination of
accused 13 by the prosecutor:
‘
MR
SELEPE
Mr Langa, the number
0766352808,
I am in possession of these cell phone records. M'Lord, for the
record, we did not present evidence of this number. It was only
made
available to me yesterday afternoon, as well as the cell phone
records for the number
082[…]4
.
I have records for these numbers, the cell phone records.
COMBRINK
J
Yes, now as I understand
you, you said these records became available to you yesterday for the
first time?
MR
SELEPE
Yesterday
afternoon.’
The
cross examination then continued in the following vein:
In the phonebook of
accused 19, that is Vusi Njoko, there is a number saved by the name
of Kehla which is your name or similar to
your name, but let me read
the number. It's
076[..]8
.
I hear that.
Is this not your
number? No, it's not mine.
I see. Accused 7
...[intervention].
……
..
Accused 7 had the same
number stored in his phonebook, but now the name is, under which it
was stored, Seveni4.
……
..
MR
SELEPE
Accused 23, Hamilton
Mazibuko, has got the same number stored in his phonebook, but under
the name Kehlis [spelt].
I
hear that.
I see. Accused 9,
Mpho Tsotetsi, he had the same number saved under the name KG.
……
..
Accused 11, Mr Louis, he
had the same number stored in his phonebook under the name Kehla, but
this is how he spelt Kehla.
Kelha [spelt].
Let's look, the number
082[…]4, do you know this number?
I do not remember that
number.
Is it
possible that you could have used this number when you opened an
account? I do not know whose
number is
this.’
(k) Thereafter the
following exchange occurred regarding the status of the cell phone
records relating to the cell number with which
accused 13 was
confronted but had denied knowledge of:
‘
COMBRINK
J
But it can't be before
the Court properly until such time at it is placed before the Court
by way of evidence.
MR
SELEPE
As the Court
pleases.
COMBRINK
J
That would entail that at some
appropriate stage you'll have to make application to lead in
rebuttal.’
(l)
The State never presented any evidence that the cell phone records
were those of accused 13. Mr Slabbert submitted that a ‘very
strange procedure’ was followed and that it appears that the
trial Court without notifying any party, arranged for two witnesses
to appear at Kokstad C Max Prison where the evidence of these
witnesses was received. There is further no indication whether the
cell phone records were properly obtained in terms of
section 205
of
the
Criminal Procedure Act.
(m
) On
8 September 2011 after all the evidence had been concluded, the
following appears in the record, seemingly unexplained:
‘
COMBRINK
I have been informed by the Registrar
that the two witnesses who were intended to be called today is not
present and arrangements
are being made to get their attendance as
soon as is physically possible. Subpoenas have been issued and
served and the returns
are at hand, I am told. Will you confirm
that, Mr Selepe?’
and
subsequently:
[93]
‘
COMBRINK
J
Thank you. Just for the
record, I considered in the interests of justice that the testimony
of this witness be received.
The reason is that certain
exhibits reflecting cell phone communications have been used on the
basis that it was subject to proof
or admission. No common
ground could be found between counsel for the State and counsel for
the defence with regard to the
admission of this evidence. As a
consequence, I decided that it's in the interests of justice that I
caused the witness to
be called. Will you rise please?’
The
two witnesses were thereafter called, after the defence cases had
been closed, by the court to give evidence of the cell phone
communications on that particular cell phone number, but still
without proof that the numbers were in fact that of accused 13.
(n) In rejecting the
version of accused 13, the trial court remarked:
‘
Another
improbability inherent in his testimony concerns his claim that he
was picked up as an ordinary passenger by accused 24.
As
mentioned earlier, that claim was so grossly improbable as to be
noted as an outright lie. Earlier we held that accused 13 was
indeed
“Kehla”, whose cellphone record was placed before the
Court. That record places accused 13 squarely amongst
the
accused who travelled from Johannesburg to Durban, as fully treated
of earlier in the judgment’.
This conclusion by the
learned trial judge raises two components which require to be
scrutinized more closely, namely whether accused
13’s
explanation as to how he became a passenger could be reasonably
possibly true, and whether the cell phone records placed
before the
court indeed were his. I deal first with the latter.
(o) Mr
Slabbert submits that the trial court still erred in drawing an
inference that because the nick name of accused number 13
is Kehla,
therefore the number must be his number. The State failed to prove
that the cell numbers were those of accused number
13 and closed the
State’s case nearly four years after the arrest of accused 13
without any proof of such number. The evidence
presented by the State
during the State’s case was that accused number 13 was not in
possession of a cell phone. Mr Slabbert
pointed out that there was,
for example, no evidence that any of the other accused in the white
Kombi was not known by the nick
name ‘Kehla’, or that the
phone books might not refer to another person altogether, this
especially where the number
was not stored in all the phone books
under the name ‘Kehla’.
(p)
The version of accused 13 was that he had boarded the kombi as an
ordinary passenger and that he was not part of the group that
left
from accused 24’s house.
(q) Mr
Selepe has criticized this version on the basis that the evidence of
accused 13 that he was picked by the white Kombi which
Mncube and
Govender had initially followed from the house of accused no 24, was
not put to Mncube and Govender for comment. He
also said that accused
13 could not explain why he did not instruct his legal representative
to put this to Mncube and Govender.
(r)
That argument is however premised on accused 13 having been picked up
as a passenger after Mncube and Govender started following
the white
kombi (leaving aside also the difficulty that they did not keep the
white kombi in sight throughout from the time it
left the home of
accused 24 until it was stopped at Mvoti but left to drop off Mncube
at the garage where he met up with the ‘flying
squad’).
Accused 13’s version was not that he had been picked up by
accused 24 after the white kombi left the house
of accused 24, but
that he had boarded the kombi earlier at the BP garage when the kombi
was driving from the rank to the home
of accused 24. Mr Selepe and
the court
a quo
seem to have relied on a portion of the evidence of accused 24 who
testified:
‘
As
I was leaving, intending to take the road leading to the direction of
Durban, one of the passengers asked me to go via the garage
in order
to pick up his friend who was there …’
That
evidence was however equivocal, did not identify the ‘friend’,
and did not exclude the possibility that accused
13 was indeed picked
up by accused number 24 whilst he was driving the taxi from the rank
to his house. The criticism of accused
13’s version therefore
seems misplaced.
(s)
That left only the evidence that accused 13 had R1 250 on his
person at the time of his arrest and that on the floor of
the white
kombi lay some R80 000.00 in cash. Mr Selepe argued that it is
highly improbable that accused no 13 knew nothing
about the money
which was discarded by the occupants of the white Kombi when stopped
by the police. However, if it is accepted,
as indeed it must, that
accused 13 must get the benefit that his version as to how he became
a passenger might be reasonably possibly
true, then accused 13 could
reasonably possibly also not have known of the presence of R80 000.00
in the kombi, until it was ‘shed’
when the white kombi
was stopped by the police at Mvoti..
(t) The trial court
concluded;
‘
There
is no evidence placing accused 13 at any of the crime scenes.
However, given the frequency of his calls before and after the
ten
hour period of silence, presents as unusual.’
There was however no
proof that the record of calls related to his phone. The trial court
had simply inferred that it was the number
used by accused 13 on the
following basis:
‘
(a)
The question is who is “Kehla”? On a conspectus of the
relevant evidence, we are satisfied that it was accused 13.
Our
reasons are:
(b) Accused 13’s
common name is Kehla. It is the name by which he is known by
his family and friends.
(c)
Whilst accused 13 admitted in his evidence during these proceedings
that he was known as Kehla, he emphatically denied that
he had a
cellphone with him at the time of arrest at the Umvoti Plaza
tollgate. This denial flies in the face of directly
contradictory evidence in the affidavit submitted by accused 13
during his application to be admitted to bail pending the outcome
of
this trial. There he said that he was in possession of a
cellphone at the time of arrest, but that it had been taken by
the
police.
[94]
(d) He
was arrested in the company of accused 9, 11 and 23 in whose
phonebooks his
[95]
number was
recorded. He was arrested in the white kombi with highly
incriminating evidential material in it – e.g.
some R80
000.00 in cash on the floor of the vehicle, literally at his feet
where he was seated in the rear, together with the automatic
rifles
protruding from a bag on one of the rear seats of the vehicle.
(e)
The reliable evidence in point emanating from Captain Mncube is that
the white kombi left from accused 24’s house at Mzingazi
with a
full complement on board. They followed the white kombi, which
proceeded, without stopping, from accused 24’s
house
directly to the John Ross Highway and from there on to the N2 south,
from where the vehicle continued up to the point of
arrest at the
tollgate.
[96]
(f) Accused 13 was not a
fare-paying passenger in the kombi as he claimed. It defies all
imagination that a vehicle, in which
on the face of it, the divided
proceeds of a robbery was being conveyed would pick up an outsider as
a fare-paying passenger.
The fact that the police have no
record of a cell phone found in possession of accused 13 is not
dispositive of the question whether
he had one on him at the time of
his arrest. Given the extreme circumstances in which the
arrests and processing of the exhibits
took place, as described
supra, accused 13, could have jettisoned the cellphone unnoticed or
it could have been missed or mislaid
by the police.
(g)
Finally, the puzzle is completed by accused 13’s mendacity,
when questioned about the cellphone and his affidavit evidence
aforementioned and as to how he happened to be in the white kombi at
the time.’
[65] As pointed out above
some of these findings were based on an incorrect interpretation of
parts of the evidence:
(a) The police did not
find a cell phone in the possession of accused number 13 at the time
of his arrest. It is not just simply
a case that they have no record
of a cell phone; the State case positively was that no cell phone was
found on him. This supports
the correctness of accused 13’s
evidence that the statement in the bail application that he had a
phone is incorrect.
(b) The Court erred in
interpreting the evidence of the money at his feet, which was not
that unequivocal. Its findings regarding
the fire arms was clearly
contrary to the evidence and seems to possibly have influenced the
inferences drawn also regarding any
‘collective’
possession of the money found in the vehicle.
(c)
The accused never claimed that he was a “
fare paying
passenger
”. He was not questioned on this aspect and he did
not say what the Court found.
[66] Mr Slabbert also
pointed to a number of further incorrect findings in the Judgment
regarding accused number 13, namely:
(a) It
was found that he was a rear seat passenger in the white kombi. There
were however various others who the court found were
also rear seat
passengers. They could not all be rear seat passengers. There was no
witness who placed accused number 13 on the
rear seat. Accused number
13 indeed testified that he was sitting in the second row from the
back and that evidence was not challenged.
(b)
The witness Dean testified that the money was ‘
op
die vloer voor in die voertuig’
and at the rear. Not a single witness testified specifically that
there was ‘…money at his feet’.
(c)
The Court found that:
‘
there
is no evidence placing accused 13 at any of the crime scenes.
However, given the frequency of his calls before and after the
ten
hour period of silence, presents as unusual.’
(d)
There was however no evidence that this cell number was that of
accused 13.
(e)
The Court found that:
‘
We
have already held, for reasons to be elaborated upon later, that he
was in fact “Kehla”, whose cellphone records
were placed
before the Court under that name. His number was stored in the
phonebooks of accused 7 (in the red kombi) and
accused 9, 11 and 23
(in the white kombi)’.
[67]
Apart from there being no direct proof that accused 13 was indeed the
‘Kehla” referred to in the phone books of
some of his
co-accused, the court did not appear to have considered that there
was no communication between accused 7, 9, 11 and
23 and accused 13
at all at any stage.
[68]
Although the court rejected the evidence of accused 13, and one might
have suspicions, possibly even strong suspicions whether
as a matter
of probability his version might be the more probable, the test is of
course not one of probability but proof beyond
reasonable doubt. It
seems to me that it cannot safely be concluded that the version of
accused 13 as to how he came to be present
in the white kombi cannot
be reasonably possibly true. It seems that the trial court was
heavily influenced by its conclusion that
the Kehla referred to in
the phonebooks of some of the other accused, was a reference to
accused 13 who it concluded was the Kehla.
The word Kehla is however
commonly used in the isiZulu language to denote an old or older
person
[97]
, especially an
older male person, and is often descriptive rather than unique.
According to the indictment accused 13 was 34 years
old and thus
hardly a ‘kehla’.
[69]
Accused 13 should have been found ‘Not Guilty’ on the
evidence tendered. However, even if I was wrong in that regard,
there
seems to be force in the argument by Mr Slabbert that the trial court
erred in concluding that it was in the interest of
justice that the
court call the two cell phone witnesses after all the evidence had
been led. The effect of the court calling these
two witnesses was to
fill a
lacuna
which had arisen in the State’s case and which the State failed
to address after its attention had been drawn thereto by
the learned
judge. By calling these witnesses the court filled that
lacuna
.
The evidence could only have the purpose of strengthening the state
case, and if it properly proved the records as belonging to
accused
13, could indeed have had that effect. It might then even be said
that accused 13 did not have a fair trial.
[98]
On either basis his appeal must succeed and he is found not guilty
and is discharged on all the counts.
ACCUSED
26:
[70]
Similar submissions as in respect of accused 13 have been advanced by
Mr Slabbert in respect of accused 26. I do not intend
repeating
equally applicable principles found to apply in respect of accused
13, but will mainly deal with the aspects where the
case of accused
26 departs from that of accused 13. The most significant
distinguishing aspect relating to accused 26 is that he
was not
arrested at Mvoti with the majority of the accused, but only
subsequently on 14 October 2006. There was no evidence against
him
other than cellular communications made to and from his alleged cell
phone number. The cell phone records did however establish
that
his
cell phone number was used during the afternoon reconnaissance trip
preceding the robbery, and later at times which might have
been
crucial to the robbery and attempted robbery. Specifically the cell
phone records revealed a communication with the cell phone
of accused
1 on 1 October 2006, another for 179 seconds at 5h39 on 2 October
2006, 46 instances of communication with one Msimango
(an accomplice)
from 1 September 2006 to 3 October 2006, 126 communications with one
Mzet (another accomplice), during the period
from 1 to 30 September
2006, 200 communications with accused 1, 29 communications with
accused 7, 34 communications with accused
14, 1 communication with
accused 20, 2 communications with accused 19, 18 communications with
the accomplice Fana, 3 communications
with the accomplice Spiwet, 1
communication with the accomplice Xha, 106 communications with the
accomplice Mzet, and 28
communications with the accomplice
Msimango. On 1 October 2006 there were 24 communications between the
cell phone of accused 26
and that of accused 1, two with that of
accused 7, two with that of accused 22, one with that of accused 14,
four with that of
accused 20, two with that of Spiwet, one with Xha,
three with Mzet and three with Msimango. On 2 October 2006 accused
26’s
cell phone records reflect calls through the Meerensee
tower to accused 19, accused 14 and Mzet and later back at Mzingazi
through
the Richards Bay Lighthouse tower from 11h11 with accused 14
and 19. Later through the Meerensee the phone reveals two
communications
each with accused 14, 19 and 24. This trend
continued into the evening when calls were signposted through towers
all the
way to Penicuik and Charters and back again to Mzingazi by
20h08.
[99]
Inspector Ntombela
also testified as to the circumstances in which accused 26 was
arrested. Accused 26 knew accused 1, 7, 8, 14,
19, 20 and 24.
[71]
The investigating officer testified regarding accused 26 and the use
of the cell number registered to him as follows during
cross
examination:
‘
Now
you didn’t ask him what is your cellphone number of the
cellphone you used on the 2 October 2006? No,
I didn’t ask him that.
So if I ask you now, you
referred to the cellphone of accused 26, will you agree with me
if I say you’ve got no evidence
that he used that cellphone
which the number he used to obtain the number, that he used that
cellphone on the 2 October 2006? No,
I can’t say that he used that phone or we used it.
[Indistinct] If
I did then I was part of the robbery.
COMBRINK
J
The suggestion he might
have given it to somebody else or somebody else used it and then
subsequently he got the phone, is that
the suggestion?
MR
SLABBERT
That’s
it. If I knew he was using
that phone then I would have been part of the robbery.
You
didn’t know at that stage because you didn’t have the
cellphone records? No.”
[72]
Mr Slabbert argues that at the end of the State case there was no
evidence that it was indeed accused 26 who had used his cell
phone
causing the communications reflected on the cell phone records and
hence
prima facie
linking accused 26 to any of the offences, that he therefore should
have been discharged at the end of the State case, and that
the trial
court erred in not discharging accused 26. I am not persuaded that
this is so.
Prima facie
accused 26 had a case to meet and if nothing else, had to testify
that he was not responsible for the communications reflected
on the
records relating to his cell number during the material time,
particularly on 2 October 2006.
[73]
Although the trial court rejected the evidence of accused 1, accused
1 testified when asked about nine calls he made to the
cell phone of
accused 26 on 1 October 2006 that he spoke to both accused 26 and one
Bheki.
[100]
That evidence
might suggest confirmation of part of accused 26’s version.
However, accused 1 further testified, based on
the cell phone
records, that he had spoken to accused 26 for no less than 179
seconds at 5h39 on 2 October 2006, which evidence
was not challenged
by accused 26’s counsel in cross examination. This is of
considerable significance. This evidence would
be inconsistent with
accused 26’s version that he had handed his telephone to Bheki
between 22h30 and 23h00 on 1 October
2006 and that the phone was only
returned to him by Bheki between 12h00 and 12h30 when he was leaving
for Johannesburg. This was
direct unchallenged evidence from a
co-accused, a competent witness, that he spoke to accused 26 on the
material day when he said
he did not have the use of his cell phone.
[74]
Accused 26’s defence as summarized correctly by the court
a
quo
was as follows:
‘
At
about 18h00 on 1 October 2006 he attended a braai at Hillview,
Empangeni. During the course of the braai he went to Esikhawini
to
fetch his girlfriend, Zanele Makhanya. At the braai he was,
amongst others, in the company of Bheki, his driver.
He left
before the braai ended as his girlfriend wanted to go home.
When he left the braai, he also left his cellphone with
Bheki, who
had to make certain arrangements with accused 1 regarding a gearbox.
Thus he left his phone with Bheki between
22h30 and 23h00 on 1
October 2006. The cellphone was only returned to him by Bheki
on 3 October 2006 between 12h00 and 12h30,
as he was leaving for
Johannesburg and needed the phone. He testified that he was,
accordingly, not in a position to account
for the calls that were
made or received by his cellphone between 1 October 2006 from about
22h00 to 23h00 to noon on 3 October
2006.’
[75]
Accused 26 also testified as to how and the circumstances in which he
was arrested by Ntombela. It differed in certain material
respects
from the evidence of Ntombela and he was unable to explain why
Ntombela was not challenged with those parts of his evidence
which
differed materially from that of Ntombela. When he was cross examined
on his reasons for handing his cell phone to Bheki,
his answers
became vague and in the view of the trial court, spurious. Having
initially denied knowing Mzet, he was eventually
constrained in the
light of the cell phone records reflecting 106 communications with
Mzet during the period from 1 to 30 September
2006, to concede that
he knew Mzet. Accused 26 did not call any witnesses in his defence.
He could hardly have been expected to
call Bheki, even if he could be
persuaded to attend because if consistent with his version, Bheki
would be complicit in the robbery
and would be entitled to refuse any
questions that may incriminate him. If Bheki’s evidence was
inconsistent with his evidence
then calling Bheki would be
self-defeating, a result he would not be required to produce in the
light of the right he enjoys as
an accused person in terms of the
Constitution.
[101]
[76]
The trial court rejected his version, describing his claim that Bheki
had the use of his cell phone at the material times as
‘cynical
and fatuous’. It concluded that he personally had used his cell
phone at times crucial to the robbery and
attempted robbery. Although
it is so, as Mr Slabbert stressed, that the trial court gave no
specific reasons why it came to the
conclusion that it was indeed
accused number 26 who used the cell phone, it is implicit in its
rejection of accused 26’s
version. The mere fact that it
rejected the version of accused 1 does not mean that accused 1’s
evidence insofar as it purported
to confirm accused 26’s
version that he had his phone on 1 October 2006 and contradicted his
version that he had passed it
to Bheki who had it on 2 October 2006,
is irrelevant or insignificant especially where accused 26 did not
challenge this contradictory
evidence when given by accused 1, at
which time no ruling had been made rejecting accused 1’s
evidence. The trial court made
a credibility finding, having had the
opportunity of observing the witnesses, especially also accused 26,
which a court of appeal
should not interfere with lightly,
[102]
not that it means it can never be interfered with, and ever mindful
of the fact that demeanour might not be an altogether reliable
indicator of reliability.
[77] Mr Slabbert has
however argued strenuously that events occurred following the cross
examination of accused 26 which conclusively
point to him not having
received a constitutionally fair trial, and which
a fortiori
would taint the aforesaid credibility finding. During the cross
examination of accused number 26 the following exchanges occurred:
MR
SELEPE
Are
you going to call her
[103]
to testify about the recovery of these exhibits? I do not see
any need to call her, but may the Court decide. It's your decision.
COMBRINK
J
And just understand something, the
Court does not call defence witnesses neither does the Court call
State witnesses. Whoever
is the party who decides will be you
in this case together with your counsel. I do understand.
Later Mr Selepe responds
as follows:
‘
I
have consulted with her again and the decision is that, M'Lord, I'm
not going to call her. I have conveyed my decision to
my
learned friend Mr Botha and what transpired during the consultation.
According to him, accused 26 is not calling Ms Zama.
M'Lord, in
that regard I'll like to bring an application to this Court in terms
of
section 186
of the
Criminal Procedure Act.
[104
]
COMBRINK
J
As you indicated in
chambers, when counsel came to see me about this, intend applying
that I exercise my discretion.
MR
SELEPE
Yes.
COMBRINK
J
To call this witness.
MR
SELEPE
That's correct,
M'Lord.
COMBRINK
J
Well, these witnesses.
MR
SELEPE
Yes.
COMBRINK
J
I have to be satisfied
that it is in the interests of justice that I do so.
[78]
The trial court subsequently called accused 26’s girlfriends
Zama Magwaza and Zanele Makhanya as witnesses. Their evidence
was led
by one state counsel and Mr Selepe, the prosecutor was also allowed
to cross examine them.
[79]
The power of a criminal court to call witnesses
mero
motu
is found in
section 186
of the
Criminal Procedure Act 1977
,
[105]
which provides:
‘
The
court may at any stage of criminal proceedings subpoena or cause to
be subpoenaed any person as a witness at such proceedings,
and the
court shall so subpoena a witness or so cause a witness to be
subpoenaed if the evidence of such witness appears to the
court
essential to the just decision of the case
.’
[80]
In
S
v Gabaatlholwe and another
,
[106]
the Court considered the import of the phrase ‘essential to the
just decision of the case’ and concluded that it means
that:
‘
the
court, upon an assessment of the evidence before it, considers that
unless it hears a particular witness it is bound to conclude
that
justice will not be done in the end result. That does not mean that a
conviction or acquittal (as the case may be) will not
follow but
rather that such conviction or acquittal as will follow will have
been arrived at without reliance on available
evidence that would
probably (not possibly) affect the result and
there
is no explanation before the court which justifies the failure to
call that witness
. If the statement of
the proposed witness is not unequivocal or is non-specific in
relation to relevant issues it is difficult
to justify the witness as
essential rather than of potential value
.’
(my underlining)
[81]
Mr Slabbert argues that the trial court decided to call these
witnesses on what is a mere collateral issue solely to destroy
the
credibility of accused 26, and hence that accused 26 did not have a
fair trial.
In rebuttal Mr Selepe has
argued that a court does not have the benefit enjoyed by the
prosecution and defence of being in possession
of the statements of
witnesses and to consult with witnesses before calling them, and
therefore the trial court would not know
what the witnesses will
testify, especially whether they will destroy the credibility of
accused 26, or not.
[82]
Where the defence of accused 26 was content to rest with only his
evidence without calling the evidence of his girlfriends
and Bheki,
and the State disavowed any intention to call the witnesses, a court
should be very slow to exercise its discretion
to call further
witnesses. The evidence of the two witnesses that were called shows
that they indeed endeavoured to support the
alibi of accused no 26.
However their attempts failed because the trial court found, whether
correctly or not, that their evidence
was unreliable based on the
cell phone records of accused 26, which were the very records the
State sought to rely upon, but which
accused 26 had testified were in
respect of communications made on his cell phone during the time he
did not possess his cell phone.
[83] In my respectful
view the trial court erred in calling these witnesses. The effect
thereof was to afford the State an opportunity
to place evidence
which it had disavowed to advance as material and relevant before the
court by evidence extracted during cross
examination. That was a
material misdirection. Indeed, the placing of this evidence before
the court
a quo
has the effect, or at least creates the
perception, that it was the evidence which emanated from these
witnesses called by the
court, which secured a sufficient evidential
basis for a conviction. That would certainly create the perception
that accused 26
had not had a constitutionally fair trial, a right he
would be entitled to in terms of section 35(3) of the Constitution,
which
provides:
‘
Every
accused person has a right to a fair trial, which includes the right
-….’
[84] In my view, the fact
that there was such a misdirection should not automatically result in
success in the appeal and a dismissal
of all the charges against
accused 26. Plainly, the evidence of these witnesses, and the
conclusions drawn therefrom by the trial
court fall to be disregarded
and to be re-evaluated by this court afresh. The question then
becomes one as to whether on the evidence
that remains, the
conviction could be sustained. It is improbable in the extreme that
co-accused (including some who have admitted
liability on the counts
under consideration) and acknowledged accomplices, would have had
such extensive interaction by cellular
communications with accused 26
during the run up to 2 October 2006, but then seemlessly
communication being maintained with these
self-same persons without
apparent interruption, but now by and with Bheki, to whom accused 26
handed his phone for very doubtful
reasons and not accused 26. This
is also all the more so where accused 26 did not give a full
disclosure of what all his conversations
with the various co-accused
to the build up to 2 October 2006 had entailed. Leaving aside the
evidence of the witnesses called
by the court and any inferences to
be drawn from their evidence, the version of accused 26 cannot be
reasonably possibly true.
The only justifiable inference consistent
with all the facts on a conspectus of all the evidence is that
accused 26 was part of
the group which planned and perpetrated these
crimes. His version to the contrary falls to be rejected as false.
Accordingly, accused
26 was rightly convicted of the crimes presently
under consideration but for reasons different to that which were
advanced by the
court
a quo
.
ACCUSED
3:
[85] The material
evidence against accused 3, apart from the intricate web of cell
phone communications and interaction with a number
of the other
accused, inter alia included that:
(a) He was a rear seat
passenger of the white kombi when arrested at Mvoti in which
R80 000.00 was found on the floor.
(b) He had R23 550.00
in cash and a cell phone in his possession.
(c) He and accused 19 and
accused 17 had reciprocally stored each other’s cell phone
numbers on their phones and he also had
the number of accused 6
stored on his cell phone.
(d)
Like many of the accused whose cell phone records established that
they had travelled together to the Richards Bay area, he
is from the
Johannesburg area.
[86] These few facts
clearly called for an answer in the form of a reasonable explanation
for his presence in the white kombi under
those circumstances.
Accused 3 however elected not to testify. In the absence of any
explanation the only inference the trial court
could draw where
accused 3 was found in the kombi with a substantial amount of cash on
the floor and, as with many of his co-accused,
large amounts of money
and in some instances incriminating evidence in their possession, so
shortly after the robbery was committed,
was the one it did. If
accused 3 had an innocent explanation or even remotely an explanation
that might be reasonably possibly
true, then he should have advanced
it. Accused 3 was correctly convicted of both counts 6 and 9.
ACCUSED
17:
[87] The case against
accused 17 includes:
(a) Like accused 3 he was
a rear seat passenger in the white kombi at the time of arrest at
Mvoti.
(b) At the time of his
arrest he was in possession of R22 230.00, two cell phones and
one pair of gloves.
(c) He, accused 3 and
accused 16 had reciprocally stored each other’s cell phone
numbers in their respective phones. His phone
number was also saved
on the cell phones of accused 9 and 22.
(i) Accused 17’s
palm print was found on the smart box found in the boot of the
Hyundai, which was driven by accused no 14.
That is a damning piece
of real evidence which he was required to explain.
(ii)
Like many of the accused whose cell phone records established that
they had travelled together to the Richards Bay area, he
is from the
Johannesburg area.
[88] The above
notwithstanding, accused 17 elected not to testify. In those
circumstances the inferences drawn by the trial court
as the only
justifiable inferences, cannot be faulted.
ACCUSED
19:
[89]
Accused 19 resides in Gauteng. As with the other accused there is no
direct evidence that he was a party to the prior agreement.
However
at the time of his arrest at Mvoti, he was the left front passenger
of the Hyundai sedan driven by accused 14. In the cubbyhole
of the
vehicle immediately in front of him was an ABSA Arboretum bag
containing R28 430.00 in notes. On his person was an
FNB deposit
slip which accompanied the money handed to Fidelity by the Spar
Grocer at Ingwavuma and which had been in the Fidelity
Hi-Ace when it
was robbed at Charters. In the Hyundai were
inter alia
three
unopened Fidelity smart boxes with money which had been robbed from
the Hi-Ace at Charters on one of which was the fingerprint
of accused
17, R2 500.00 in cash on the floor, a .38 Rossi revolver
belonging to Fidelity and which had been taken during
the robbery at
Charters, and two pairs of gloves.
[90]
Accused 19, accused 1 and 8 had reciprocally stored each other’s
numbers on their respective cell phones and accused
19 had also saved
the numbers of accused 13, 14, 15, 25 and 26 on his cell phone.
[91]
Accused 19 admitted knowing accused 14 but he must also have known
accused 1, 3, 8 and 18 who had his cell number/name stored
on their
cell phones, and accused 7, 13, 15, 25 and 26 whose numbers appeared
in his phone book. Govender furthermore testified
that he had seen
accused 19 at the gate to accused 24’s residence when he and
Mncube drove past, before all the vehicles
departed from that address
on the evening of 2 October 2006.
[92]
Clearly the aforesaid evidence called for a reply. Accused 19 did
testify. His version was that he had arranged with accused
14 to take
him from Newcastle where he had been visiting friends and relatives
to the Durban station so he could board a bus to
Johannesburg. One
Mduduzi Zulu who accompanied accused 14 and accused 14 then said they
were first going to Mtubatuba and accused
19 agreed to go along to
visit his friend Mabiza who resides at Meerensee. One Khuzwayo and
Mabiza took accused 19 along to look
at a motorcycle which Mabiza
wished to purchase at KwaMsane. He had arranged with accused 14 and
Zulu to meet them at 20h00 at
the Madunga tavern at Mzingazi. Mabiza
took him to Madunga where he met accused 14 drinking at the tavern.
Zulu arrived very late
that night in the blue Hyundai, handed the
keys to accused 14 and they were travelling to Durban, when they were
arrested at Mvoti.
[93]
The trial court evaluated this version very carefully.
[107]
Accused 19’s version was rejected. I am not persuaded that the
trial court erred in doing so. Accused 19 was found to be
evasive and
was unable to explain satisfactorily why he did not advance this
version immediately when arrested and confronted with
the money in
the cubby hole in front of him. He could have called a number of
witnesses to support his aforesaid version, but this
did not happen.
In the absence of a satisfactory explanation for that failure, an
adverse inference must be drawn. He was also
unable to account
adequately or at all for his possession of the deposit slip found on
his person.
[94]
Accused 19’s version was contradicted by the objective cell
phone evidence. His claim that he was travelling from New
Castle to
Richards Bay is false as his cell phone records place him in the
midst of the convoy of vehicles with his co-accused
who travelled
from Gauteng. Similarly his denial that he was anywhere near Mzingazi
at the relevant times is belied by his cell
phone records which
reflect nineteen calls made through the Richards Bay Lighthouse tower
at Mzingazi. Aspects of his evidence
also conflicted with the
contents of his warning statement. Although he said that he had made
calls while allegedly in Pongola,
his cell phone records did not
reflect any such calls.
[95] I am not persuaded
that the trial court had erred in convicting accused 19 of counts 6
and 9.
ACCUSED
4:
[96] Accused 4
inter
alia
:
(a) Was a rear seat
passenger in the white kombi in which R80 000.00 was found on
the floor, when he was arrested at Mvoti.
(b) Was found with two
cell phones and R2 770.00 in cash in his possession.
(c)
Like many of the other accused shown to have travelled together,
accused 4 is also from the greater Johannesburg area.
[97]
Accused 4 elected not to testify. Mr Seedat argued that he was
justified in not testifying as his cell phone records for 2
October
2006 did not place him near the scenes, he could not be linked by
cell phone records to having been at Mngazi, and that
he was found
with only R2 770.00 in his possession. On that basis he
submitted that it was reasonably possibly true that he
had nothing to
do with the robbery.
[98]
Accused 4’s presence in the white kombi under the circumstances
detailed above, regardless of the lack of other incriminating
evidence referred to by Mr Seedat, clearly called for an answer from
him failing which an adverse inference fell to be drawn. Where
he has
failed to do so, the inference is that he has no exculpatory
explanation to being found with all the other accused in the
same
kombi with a large amount of money discarded on the floor, so shortly
after the robbery at Charters was perpetrated a few
hours earlier
that evening.
[99] Accused 4 was
correctly convicted by the trial court.
ACCUSED
5:
[100]
Accused 5 was at the time of his arrest travelling in the red kombi
with accused 7, 12, 16 and 22. He had R23 100.00
in his
possession which he maintained he had brought with him from
Johannesburg where he resides, to purchase stock for his clothing
business. He had travelled by air from Johannesburg to Durban on 2
October 2006, he said for this purpose. Dissatisfied with stock
and/or prices at the Durban station he was allegedly referred to
Asmalls in Stanger and then travelled to visit his girlfriend
in
Richards Bay. Later that evening he looked for transport to
Johannesburg and he stood under a bridge on the N2 and subsequently
boarded the red kombi. Upon entering he found accused 12 driving and
with accused 7 as passenger. This version Mr Seedat argued,
could be
reasonably possibly true and that accused 5 should get the benefit of
any doubt.
[101]
Accused 5 admitted that he knew accused 1, accused 22 and accused 25.
More importantly however, the cell phone records relating
to his cell
phone demonstrated that it did not allow sufficient time for his
version that he first visited the Durban station before
proceeding to
Richards Bay. Not only does that place a question mark over his
reasons for his trip to Richards Bay, but he was
also unable to
explain why his cell phone records reflected two calls made through
the Richards Bay Lighthouse tower, one to accused
19, if he never
went to Mzingasi. His version was also contradicted by accused 16 and
22 who were also in the red kombi when arrested,
who seemingly
wanting to support his version, in fact contradicted it by stating
that he was picked up at Stanger on their way
to Mvoti. He was also
unable to explain why his denial that R30 000.00 was found lying
in the red kombi was never put to the
police when they testified
about the discovery of this money.
[102]
The trial court for inter alia the aforesaid reasons,
[108]
with which I agree, rejected the version of accused 5. I am not
persuaded that it erred in doing so. In my view accused 5 was
convicted correctly of counts 6 and 9.
ACCUSED
11:
[103]
Accused 11 was a rear seat passenger in the white kombi when arrested
at Mvoti. He had R34 450.00, a cell phone and one
pair of woolen
gloves on his person. He, accused 8 and 9 and 25 had reciprocally
stored each other’s cell phone numbers in
their cell phones. He
admitted that he knew accused 2, 9, 18, 21 and 23 and had accused 7
and 13’s cell numbers stored on
his phone. Like many of the
other accused who it was established had travelled together in convoy
to Mzingazi, he is from the greater
Johannesburg area.
[104]
The evidence of accused 11 was that he and his brother Mario had left
Johannesburg in a minibus traveling to Pongola to collect
R35 000
from his brother in law who operates three of his (accused 11’s)
taxis in Maputo. After collecting the money, they
returned to and had
arrived at Richards Bay at about 16h00. Later his brother was to
travel in the minibus to Maputo with passengers
and he proceeded to
the taxi rank at Richards Bay in order to find a taxi to take him to
Durban and that was how he came to be
a passenger in the white kombi
at the time of his arrest with R34 354.00 in his possession. Mr
Seedat maintained that this
version was reasonably possibly true.
[105] The trial court had
no hesitation in rejecting the version of accused 11. I do not intend
repeating its reasons for doing
so. I have not been persuaded that it
erred in doing so. His evidence was unsatisfactory and did nothing to
rebut the inferences
arising from the State’s evidence. The
trial court correctly convicted accused 11 of counts 6 and 9.
COUNTS
7 AND 8, 10 AND 11, 12 TO 14, 15, 18, AND 21 TO 23:
[106]
It follows from what I have set out above that in my view accused 1,
6, 7, 8, 14, 20, 22, 24, 25 and 26, accused 2, 3, 9,
15, 16, 17, 18,
19, 21 and 23 and accused 4, 5 and 11 were rightly convicted of the
primary offences in counts 6 and 9. What remains
to be considered is
whether the aforesaid accused were convicted correctly of the
remaining counts not dealt with earlier, irrespective
of any
concessions made in respect thereof.
[109]
These counts relate to the attempted murders of Ncwane (count 7) and
Thring (count 8) at Penicuik, the attempted murders of Mnqayi
(count 10) and Mnguni (count 11) at Charters, the attempted murder of
Biyela (count 12), Khoza (count 13) and Mthetwa (count 14)
near
Charters, the robbery of Msweli (count 15), the robbery of Masango
(count 18), the murder of Gumede (count 21) and the attempted
murders
of Nkabinde (count 22) and Ntombela (count 23) all near Penicuik.
[107]
The issue, as always in matters of criminal intent, is one of
subjective foreseeability, but very importantly
in casu
, one
of the ambit of the prior agreement between the parties. There is no
direct evidence on what was agreed amongst the accused,
but all the
proven facts are consistent only with the inference that the two
robberies would be carried out in a particular manner,
with the
Fidelity vehicles being incapacitated by being rammed off the road
which would carry the risk of serious injury or death
to the
occupants, any resistance or possible threat to their operation being
overcome by the use of or the threat of the use of
assault rifles,
any interference with the robberies in progress being prevented by
approaching vehicles being halted by stopper
vehicles, and once the
loot was extracted from the Fidelity vehicles, all the participants
making their way back to the house of
accused no 24 where the bags
would be opened and the spoils shared, before they would disperse. On
all the evidence the accused
subjectively foresaw this
modus
operandi
and the risks inherent in that process, and were
reckless as to whether such risk would eventuate or not.
[108]
In
S
v Sibeko and another
,
[110]
the Supreme Court of Appeal held that where one member of a group of
robbers was armed with a loaded firearm with the knowledge
of others
in the group, all of them must have foreseen the possibility of that
firearm being used against the contingency of resistance.
In that
case the Court accepted the confrontation of the accused by the
police 6 km away from the scene of robbery as resistance.
Every case
must however depend on its own facts. I shall therefore turn to
consider the various categories of the remaining offences.
COUNTS
7 – 8 AND 10 – 11:
[109]
These counts relate to the attempted murder of the occupants of the
Fidelity vehicles namely Ncwane and Thring at Penicuik
and Mnqayi and
Mnguni at Charters, arising from the risks to their lives when their
vehicles were forced off the road causing them
to overturn. This
conduct was clearly an integral part of the prior agreement amongst
the accused and their conviction on these
counts undoubtedly
correct.
COUNTS
12, 13 AND 14:
[110]
Mr Fraser conceded that the convictions on counts 6, 7, 8, 9, 10 and
11 were correct as these all fell within the prior agreement
between
the accused. He submitted however that the prior agreement extended
and covered only those counts. The guilt of the accused
on counts 12,
13 and 14 he submitted, would have to be determined on their own
facts.
[111]
The attempted murder of the three policemen Biyela, Khoza and Mthetwa
forming the subject of counts 12, 13 and 14 occurred
geographically
separate from the robbery at Charters. They were shot at what appears
to have been a stopper point, to halt traffic
proceeding along the N2
which could interfere with the robbery at Charters while it was in
progress. The three complainants on
these counts were fortuitously
all policemen travelling in a marked police vehicle. They were forced
to stop because of the block
of the traffic. Some of the assailants
seemingly anticipated a threat to their plan from these policemen,
and started firing at
the policemen. The policemen fled in different
directions and were very lucky to have escaped with their lives and
unhurt.
[112] The trial court
concluded:
‘
We
hold that they all harboured the requisite
mens
rea
(in the form of
dolus
eventualis
)’.
Criminal
liability could however only arise if these acts fell within their
prior agreement to rob the Fidelity vehicles.
[113] If regard is had to
the undisputed fact that numerous high velocity bullets, as would be
discharged by assault rifles, were
fired at the police vehicle, the
assailants clearly are guilty of attempted murder. The accused would
all be guilty of these attempted
murders if this conduct was foreseen
by the accused as part of their prior agreement. The stopping of the
vehicles, and being armed
with rifles, the use of those rifles to
overcome or subdue any possible impediment to their plan, were, in my
view, by necessary
inference part of the prior agreement amongst the
accused. The fact that the three complainants happened to be
policemen travelling
in a marked police vehicle does not remove their
attempted murder from the parameters of the prior agreement. A
civilian in a civilian
vehicle posing any threat to their plan would
no doubt have been dealt with similarly. Overcoming or subduing
possible resistance
where vehicles were stopped, to prevent any
interference with the robberies which were in progress, is something
the accused subjectively
would have foreseen when planning the
robberies. Their conviction on these counts is accordingly
unassailable.
COUNT
15, COUNT 18 AND COUNTS 21 TO 23:
[114]
Regarding the robbery of Msweli’s keys (count 15), the robbery
of Masango’s motor vehicle (count 18), the murder
of Gumede
(count 21) and the attempted murder of the security officials,
Nkabinde and Ntombela (counts 22 and 23, respectively)
the issue
likewise is whether this fell within the prior agreement amongst the
accused. This enquiry entails
inter alia
whether, when the
prior agreement was reached, the accused could have foreseen these
events.
[115]
More specifically, the question to be considered is to what extent it
can be inferred from the evidence adduced that events
which would
only follow when their plan seemingly went awry, panick possibly set
in and perceived resistance was encountered, and
crimes were now
being committed by individual accused in their desperate bid to
escape, necessarily would fall within the ambit
of their prior
agreement to rob the Fidelity vehicles. Can the conduct of any one
perpetrator, such as the one who fatally shot
Gumede be said to have
been foreseen by the remainder of the accused and formed part of
their prior agreement beyond a reasonable
doubt? In particular, a
court must guard against extending the terms of a prior agreement, on
which there is no direct evidence,
[111]
to all criminal conduct committed during the process of executing the
prior agreement, as would follow from an application of the
rejected
versari
in re illicita
doctrine.
[116]
The court
a quo
found as follows in this regard:
‘…
we
have no doubt but that the accused
concerned, subjectively foresaw the possibility that the firearms
might be used with fatal effect
during the execution of the
robberies,
in which escape afterwards
and the evasion of capture form an integral part; and that they were
reckless as to the eventuation of such possibility.’
And thereafter
specifically in respect of count 21:
‘
We
are accordingly satisfied that the state has succeeded in proving
beyond a reasonable doubt that Gumede had been murdered by
persons
who were part of the attempted robbery at Penicuik.’
[117]
Mr Fraser submitted that these convictions cannot be sustained, as
the prior agreement only covered counts 6, 7, 8, 9, 10
and 11, and
that the crimes giving rise to counts 15, 18 and 21 to 23 were
separate, unplanned and fortuitous and therefore could
not have been
foreseen when the prior agreement was concluded. He also pointed out
that no reasons were furnished by the trial
court for the conclusion
that the accused’s liability flowed from their foreseeability.
[118]
Mr Slabbert similarly stressed that counts 21, 22 and 23 were totally
unrelated to the attempted robbery of the Dyna. He also
points out
that it is wrong to conclude that the shooting giving rise to counts
21 to 23 occurred when there was an escape afterwards,
and that it is
not clear when this shooting occurred, particularly whether it was
before or after the attempted robbery? He submitted
that that the
trial court’s finding was based on speculation and not on facts
and further that its findings in respect of
the murder charge (count
21) was based on an incorrect factual finding and/or interpretation
of the evidence.
[119] The trial court had
found that:
‘
It
would not be an overstatement to say that the security vehicle was
riddled with bullets. The testimony of Ntombela and Nkabinde
in that
regard is supported by the photographic material placed before us,
which shows substantial damage to the windscreen, the
windows and
bodywork of the security vehicle. The deceased was fatally injured
during the fusillade directed at the security vehicle
and its
occupants.
[120] Mr Slabbert points
out correctly that it was not the evidence that ‘the barrage of
rifle fire was directed at the security
guards’, and that there
was not a single photo depicting this vehicle, neither was there any
evidence describing the bullet
damage to the vehicle as recited by
the court; nor did the evidence of Oscar Nkabinde support such a
finding. Sicelo Moonshine
Ntombela described the damage to their
vehicle as:
‘
Two
bullet holes on the bonnet which went into the engine section.
Another hole was facing where my crew was sitting- it hit the
brake
fluid container. Another hit the right front tyre making it flat.
Another two penetrated the canopy of the bakkie and of
the two
windows one was completely out and the glass behind the driver was
shattered.’
[121]
Mr Slabbert also criticized the trial court for not giving reasons
why it arrived at the conclusion that Gumede was murdered
by persons
who were part of the attempted robbery at Penicuik, in circumstances
where there is no evidence that the two incidents
are related in the
sense of similar spent cartridges being recovered at the two scenes,
or cell phone records placing any of the
accused at the place where
the murder occurred. He accordingly submitted that the Court was
wrong, as a result of what he contended
was its incorrect
interpretation of the evidence, to find that the deceased was
‘murdered’ and that the high water
mark of the State’s
case was that those who caused the death of the deceased might be
guilty of culpable homicide.
[112]
[122]
I am not persuaded by that argument. Provided the killing fell within
a common purpose, the conviction should be one of murder
as opposed
to culpable homicide. I do not set out my detailed reasons for that
conclusion however, as in my view the State failed
to discharge the
onus of proving that the killing of Gumede fell within the common
purpose amongst the accused.
[123] The trial court
held:
‘
Given
that we held that the accused had made common purpose with the
attempted robbery at Penicuik, the question posed on the relevant
facts and circumstances of the hijacking and kidnapping is whether
these offences were foreseen by the accused involved as a possible
occurrence associated with the intended robbery at Penicuik. As
a safe “getaway” from the scene of the robbery
at its
conclusion, is part and parcel of the contemplated robbery, we have
no doubt that all the parties to the common purpose
to rob the
Fidelity vehicles foresaw that a hijacking could possibly occur to
allow the robbers to escape; …’
[124] I have reservations
as to the correctness of that conclusion. Where the events giving
rise to these counts occurred at a place
geographically removed,
albeit slight from the primary scenes, and occurred as a result of
plainly unforeseen events, some doubt
must exist whether the
possibility of these crimes being committed was necessarily
subjectively foreseen and thus were contemplated
as part of the prior
plan amongst the accused. It seems to me that such doubt must exist
and that it is a reasonable doubt of which
the accused must get the
benefit. The accused are entitled to be acquitted on these counts.
COUNT
31:
[125] This count was not
subject to appeal and correctly no argument was addressed on this
count.
THE
SENTENCE OF LIFE IMPRISONMENT ON COUNT 21:
[126]
Leave to appeal against sentence was granted only in respect of the
murder count. Where a sentence of life imprisonment is
imposed, the
effect thereof,
ex
lege
by virtue of the provisions of section 37(1)(a)(i) of the
Correctional Services Act
[113]
is that all the determinate sentences imposed on the other counts,
would run concurrently with the indeterminate life sentence.
Counsel
were all agreed that if the appeal against sentence on count 21
succeeded that this court not only had to consider an appropriate
sentence on whatever verdict might be returned on count 21, but that
this court should also deal with the concurrency of the sentences
which would otherwise follow and result in a total effective sentence
of Methuselaen proportions. This accords with what the trial
court
had in mind in granting leave to appeal when it said:
‘
It
follows that if a Court sitting on appeal on the question of sentence
were to conclude that a lesser period of imprisonment was
called for
then the consequences which normally follow upon a sentence of life
imprisonment would have to be reconsidered. When
life imprisonment is
imposed all other sentences imposed ex lege run concurrently with
life imprisonment. If a lesser sentence
is imposed that is not the
case.
The Court of Appeal
accordingly will have to consider to what extent in its discretion
concurrency of serving of sentences should
take place. That
does not apply to the quantum of sentences imposed in the lesser
offences inasmuch as the appeal itself
was not addressed to the
quantum of the individual sentences, but more to the question of
concurrency because that would determine
the length of the stay in
prison of the respective accused.
To the
extent that it might be necessary this Court, in granting leave to
appeal to include that, I grant such, but I believe it
would be
proper to add that I would have thought that it would follow
automatically upon any change effected to any change to the
sentence
of life imprisonment, that concurrency would be reconsidered.”
[127]
In view of my earlier conclusion that the accused should all be
acquitted on count 21, the sentence of life imprisonment falls
away
and the only issue
[114]
which remains to be considered is which sentences should be directed
to run concurrently.
[128] It was submitted
that the learned Judge erred in not considering the cumulative
sentence of life and 153 years imprisonment
in respect of the
Applicants who were in the vehicle driven by Accused 24. It was
further argued on the question of concurrency
of the sentences that
what the learned judge had in mind in sentencing the accused was not
only that all the sentences would run
concurrently
ex lege
with the sentence of life imprisonment, but even if all the sentences
were running concurrently with the sentence of life imprisonment,
a
lesser period would be served if the prison authorities decide to
release the accused on parole before the end of the 25 years
minimum
period. During argument the learned Judge said the following;
‘
COMBRINK
J
I did not know – I
can assure you I did not, I thought that the Act still applied –
that parole was susceptible before
25 years had passed. Do you
agree that from the section that he had read in the Prisons Act, the
Correctional Services Act,
that life imprisonment means 25 years?
MR
SELEBI
That is correct,
M'Lord. That is correct.’
[129]
A Court does not however concern itself with parole provisions and
when an accused might be released on parole, in determining
an
appropriate sentence.
[115]
[130] The defence has
also argued that the sentences imposed did not take into account the
period that the accused were incarcerated
awaiting finalization of
their trial, stressing a comment by the trial judge during argument
on the application for leave to appeal,
albeit on the issue whether
there were substantial and compelling circumstances present and not
on the issue of concurrency of
sentences, where he said:
‘
COMBRINK
J
Now, I did not in that regard take
into account - for the purposes of establishing whether substantial
and compelling circumstances
exist I did not take the six years that
they had served into account. Is that not susceptible to
consideration as possibly
substantial and compelling circumstances?’
[131]
The law on this aspect has been summarized recently. In
S
v Mqabhi
[116]
the Court referred to the fact that the Supreme Court of Appeal has
dealt with the pre-sentence period in custody, and the issues
it
raises, in four relatively recent decisions,
viz
.
S
v Vilakazi
,
[117]
S
v Kruger
,
[118]
S
v Radebe and another
[119]
and
S
v Dlamini
.
[120]
The learned Judge stated the following:
[121]
‘
In
my respectful view the following appears to be evident from the four
SCA cases mentioned:
(a)
Pre-sentence detention is a factor to be taken
into account when considering the presence or absence of substantial
and compelling
circumstances for the purposes of s 51 of the CLAA
(
Radebe
,
Dlamini
et
al
);
(b)
such period of detention is not to be isolated as
a substantial and compelling circumstance. It must be weighed as
a mitigating
factor, together with all the other mitigating and
aggravating factors, in determining whether the effective minimum
period of
imprisonment to be imposed is justified in the sense of it
being proportionate to the crime committed. If it is not, then the
want
of proportionality constitutes the substantial and compelling
circumstance required under s 51(3) (
Radebe
at para 14);
(c)
the reason for the prolonged period of
pre-sentence detention is a factor. If the offender was responsible
for unnecessary delays
then that may redound to his detriment
(
Radebe
);
(d)
there is no mechanical formula or rule of thumb to
determine the period by which a sentence is to be reduced. The
specific circumstances
of the offender, which may include the
conditions of his detention, are to be assessed in each case when
determining the extent
to which the proposed sentence should be
reduced. (
Radebe
at para 13);
(e)
where only one serious offence is committed, and
assuming that the offender has not been responsible for unduly
delaying the trial
(
Radebe
at para 14), then a court may more readily reduce the sentence by the
actual period in detention prior to sentencing. (
Dlamini
and
Vilakazi
)
.’
[132]
The learned trial judge however did take account of the time spent
awaiting trial where in his judgment on the application
for leave he
stated:
‘
I
did take into the fact that the accused had waited some six years in
prison for the trial to reach its conclusion’.
He remarked:
‘
In
respect of Count 6, the attempted robbery involving aggravating
circumstances at Penicuik, I indicated I would have sentenced
the
accused to 15 years, but with due regard being had of the time spent
waiting finality in this trial I shall impose a sentence
of ten (10)
years imprisonment upon all the accused in respect of that count’.
After sentence was
imposed the trial judge commented:
‘
Because
the accused had been in prison for approximately six years, a
substantial portion thereof in difficult circumstances of
Kokstad
awaiting the conclusion of this trial, I have factored that into the
sentences I have imposed and because of it in addition,
I do not make
any order stopping the accused from applying for, in due course and
in accordance with the requisite provision, for
parole’.
The
trial court, taking into consideration the period of detention when
imposing sentence, reduced the sentence in Count 6 to that
of 10
years imprisonment. The time awaiting trial has accordingly already
been taken into account to that extent. No appeal lies
in respect of
the individual sentences. In my view the time awaiting trial should
therefore play only a very limited part in deciding
on the issue of
concurrency of sentences.
[133]
Mr Slabbert has submitted
that the
sentences:
(a) In respect of counts
7 and 8 should run concurrently with the sentence imposed in respect
of count 6;
(b) In respect of counts
10 and 11 should run concurrently with the sentence imposed in
respect of count 9;
(c) In
respect of counts 13 and 14 should run concurrently with the sentence
imposed in respect of count 12;
He
submitted that there is a substantial disparity between the effective
sentence imposed by the court
a
quo
and the sentence another court would have imposed and referred to
S
v Dlamini
[122]
where the accused was sentenced to an effective period of 43 years
imprisonment but the SCA reduced the sentence to an effective
period
of 17 seventeen years imprisonment on appeal. He argued that the
trial Judge should have considered a similar sentence and
submitted
further that there are various other judgments where sentences of
forty years and more were reduced to a sentence of
less than twenty
years imprisonment. In conclusion, he contended that the trial Judge
gave inadequate consideration to the possibility
of imposing a lesser
custodial sentence and that there was no need to overemphasize
rehabilitation without considering the other
purposes of sentence.
[134]
Although the individual accused could not physically execute the
crimes at both Charters and Penicuik at the same time, their
common
purpose clearly was to rob the Fidelity vehicles of their contents at
these two scenes and they are equally all guilty of
the two separate
primary incidents: the robbery with aggravating circumstances at
Charters and the attempted robbery with aggravating
circumstances at
Penicuik. These two crimes were planned and executed with military
precision and ruthlessness to satisfy their
personal greed. This
court would be failing in its duty if it did not punish the accused
for both these separate events severely.
As regards their personal
circumstances, the accused’s evidence on sentence revealed that
they were gainfully employed or
conducted private business before the
crimes were committed. Their evidence did not reveal that their
circumstances forced
them into committing the offences. They did not
show remorse and there is nothing to point to them being candidates
for rehabilitation.
The court found no substantial and compelling
circumstances based purely on their personal circumstances and
rightly so.
[135] The cumulative
effect of the sentences imposed in respect of the secondary offences
at each of these scenes is best ameliorated
by directing that a
portion thereof run concurrently with sentence imposed in respect of
the primary offences. A suitable and appropriate
direction in this
regard, taking account of the personal circumstances of the accused,
the nature of the crimes of which the accused
have been convicted and
the interests of society, appears at the end of this judgment.
[136]
ORDER:
1. The appeal by accused
2, 3, 4, 6, 9, 11, 13, 15, 17, 18, 21, 23 and 24 against their
conviction on counts 1, 2, 3, 4, 15, 18,
21, 22, 23, 27, 28, 29 and
30 succeeds, those convictions are set aside and they are found not
guilty of these offences.
2. The appeal by accused
1, 5, 7, 8, 14, 16, 19, 20, 22, 25 and 26 against their conviction on
counts 1, 2, 3, 4, 15, 18, 21, 22
and 23 succeeds, those convictions
are set aside and they are found not guilty of these offences.
3. The appeal by accused
13 against his conviction on all the counts he was convicted of
succeeds, those convictions are set aside
and he is found not guilty
and is discharged.
4. The
appeals by accused 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 14, 15, 16, 17, 18,
19, 20, 21, 22, 23, 24, 25 and 26 against counts 6,
7, 8, 9, 10, 11,
12, 13 and 14 are dismissed and the convictions of the accused on
those counts are confirmed.
[123]
5. The appeal against the
sentence on count 21 succeeds to the extent that the life sentence
falls away.
6. It is directed that:
(a) the sentences of
seven years’ imprisonment imposed on count 7 and five years’
imprisonment on count 8 shall run
concurrently with the sentence of
10 years’ imprisonment imposed in respect of count 6, thus
giving an effective sentence
of ten years’ imprisonment in
respect of counts 6, 7 and 8 antedated to the date the accused were
sentenced namely 29 June
2012; and
(b) the sentences of five
years’ imprisonment imposed on count 10, five years’
imprisonment on count 11, ten years’
imprisonment on count 12,
ten years’ imprisonment on count 13 and ten years’
imprisonment on count 14, shall all run
concurrently with the
sentence of 15 years’ imprisonment on count 9, thus giving an
effective sentence of 15 years’
imprisonment in respect of
counts 9, 10, 11, 12, 13 and 14 antedated to the date the accused
were sentenced namely 29 June 2012;.
7. For the sake of
clarity, the combined effect of the above is that accused 1, 2, 3, 4,
5, 6, 7, 8, 9, 11, 15, 16, 17, 18, 19,
20, 21, 22, 23, 24, 25 and 26
are all required to serve an effective total period of imprisonment
of 25 years’ imprisonment
running from 29 June 2012. Accused 14
is required to serve an effective total period of imprisonment of 25
years and three months’
imprisonment running from 29 June 2012.
___________________________
KOEN
J
I agree
___________________________
KRUGER
J
I agree
___________________________
JAPPIE
JP
[1]
This
judgment deals with the appeal against the judgment of Combrink J in
the court
a
quo
.
It therefore proceeds on the premise that the reader is familiar
with that judgment, the full details of the individual charges
against the accused as per the indictment and the categorisation of
the charges adopted by the learned judge according to whether
they
relate to what was referred to as the Penicuik incident or the
Charters Creek incident. The trial spanned some five years
giving
rise to a considerable record, which although not as voluminous as
that in
Price
Waterhouse Coopers v National Potato Co-operative
[2015] 2 All SA 403
(SCA), nevertheless comprised 10 782 pages. In
the interest of brevity evidence led before the court
a
quo
will not be repeated in this judgment in any great detail unless
material to the conclusions reached. Readers of this judgment
are
referred to the judgment of the court
a
quo
and
the record if any additional details are required. To facilitate
reading, the same terminology as adopted in the court
a
quo
will be followed to ensure consistency and hopefully ease of
understanding.
[2]
Specifically
as defined in paragraph (b) of the definition of aggravating
circumstances in
s1
of the
Criminal Procedure Act no 51 of 1977
.
[3]
For
details of these see paragraph 2 below.
[4]
Act
60 of 2000.
[5]
This
is inter alia to avoid any confusion and facilitate references to
extracts from the trial record.
[6]
No
cross appeal was pursued by the Respondent.
[7]
The
accused were indicted in the High Court, their trial commenced on 17
October 2007 and they were finally convicted on 29 March
2012.
[8]
This
means that the accused were all acquitted on counts 5, 16, 17, 19,
20, 24, 25 and 26. In addition accused 1, 5, 7, 8, 14,
16, 19, 20
22, 25 and 26 were acquitted on counts 27, 28, 29 and 30. Count 31
did not concern any of the accused other than accused
14.
[9]
Paragraph
(b) of the court order dated 16 November 2012 at page 10775.
[10]
The
grounds of appeal submitted on behalf of the appellants are,
inter
alia
,
the following:
(a)
There was no evidence against any of the
accused in respect of the Penicuik incident and the conviction in
respect of all these
charges should be set aside.
(b)
The incorrect interpretation of the
evidence and the court’s failure to objectively apply its mind
to the facts as well
as the requirements of the doctrine of common
purpose.
[11]
Notably
counts 1 to 4, 6 to 15, 18 and 21 to 23.
[12]
Notably
counts 27 to 30.
[13]
That
left accused 8 and 13 of the accused he represented who made no
concessions.
[14]
That
left accused 3, 17 and 19 of the accused he represented who made no
concessions.
[15]
The
latter is perhaps not surprising as a large number of hand gloves
were retrieved at various places during the arrest of the
accused
and subsequent clean up at Mvoti.
[16]
In
S
v Musingadi and others
2005 (1) SACR 395
(SCA), the Court at para 20 quoted with approval a
passage from Zeffertt, Paizes and Skeen’s
The
South African Law of Evidence
at page 94 which stated the following:
‘…
circumstantial
evidence may be the more convincing form of evidence. Circumstantial
identification by fingerprint will, for instance,
tend to be more
reliable than the direct evidence of a witness who identifies the
accused as the person he or she saw. But obviously
there are cases
in which the inference will be less compelling and direct evidence
more trustworthy. It is therefore impossible
to lay down any general
rule in this regard. All one can do is to keep in mind the different
sources of potential error that
are presented by the two forms of
evidence and attempt, as far as possible, to evaluate and guard the
dangers they raise’
[17]
R
v Hlongwane
1959 (3) SA 337
(A) at 431A.
[18]
Mabaso
v Law Society, Northern Provinces and another
[2004] ZACC 8
;
2005 (2) SA 117
(CC) para 20, referred or quoted in
S
v Shaik and others
[2008] ZACC 7
;
2008 (5) SA 354
(CC) para 64 at fn 45;
Mogorosi
v The State
[2010] ZASCA 147
para 7;
Florence
v Government of the Republic of South Africa
2014 (6) SA 456
(CC) para 114 at fn 96.
[19]
R
v Blom
1939 AD 188.
[20]
The
robbery at Charters and the attempted robbery at Penicuik.
[21]
Exhibit
QQ
[22]
Exhibit
7.
[23]
Exhibit
S4A.
[24]
Exhibit
15.
[25]
Exhibit
6.
[26]
Exhibit
23.
[27]
Exhibit
11.
[28]
Exhibit
13.
[29]
Exhibit
0013 – 14
[30]
Exhibit
18.
[31]
Exhibit
0011-12.
[32]
Exhibit
007 – 8
[33]
Exhibit
14.
[34]
Exhibit
0025 – 26
[35]
Exhibit
20
[36]
Exhibit
17
[37]
Exhibit
004 – 5.
[38]
Exhibit
16.
[39]
Exhibit
22.
[40]
Exhibit
RR.
[41]
Exhibit:
10.
[42]
Exhibit
21.
[43]
Exhibit
24.
[44]
Exhibit
25.
[45]
Exhibit
5.
[46]
Exhibit
19.
[47]
Judgment:
page 10145 - 10147
[48]
At
page 10145 of the judgment the trial judge remarked: ‘…
the basis upon which the perpetrators of the offence in
which the
motor vehicles were used, are guilty of theft, rests upon the
principle that theft is a continuing offence ‘.
[49]
S
v Cassiem
2001 (1) SACR 489
(SCA) at page 493A – B.
[50]
CR
Snyman
Criminal
Law
5ed (2008) 500.
[51]
R
v Brand
1960 (3) SA 637
(A) at 641E – F.
[52]
Accordingly
a conviction on the competent verdict of receiving stolen property
knowing it to be stolen would also not be competent.
[53]
Often
referred to, but incorrectly, as the ‘doctrine of recent
possession. It is not a doctrine but simply an inference
to be drawn
from established facts.
[54]
In
respect of the theft of the BMW sedan vehicle, i.e. count 2, Mr
Slabbert pointed out that the court found: ‘Given the
circumstances described above the presence of the BMW at the
Charters scene of crime and the damage thereto, is consistent with
it having been used to smash the Hi-Ace out of control which
resulted in it capsizing off the road as already described. The
BMW
also played a pivotal role in the evidence of one, Sithole, to be
mentioned later. The photographic evidence before us depicts
the BMW
in question, identified by the witness Sithole, from photograph 31
in album “E” and which is also depicted
in photograph
101 in album “L”. The photograph “E”
31 shows the rear of the vehicle with a drawn
blind over the back
window. Photograph “E 29” depicts damage to the
left front and side thereof.’
This
Mr Slabbert points out was an incorrect interpretation of the
evidence in the following respect. This vehicle was not
the
one seen by Sithole on the morning of 2 October 2006. Sithole saw
the vehicle depicted in Exhibit “D” photo 8
found at the
Penicuik scene - See Exhibit “D” Vol 67 page 6 431. The
vehicle shown in Exhibit “E” was
not damaged at all as
described by the Court - Exhibit “E” Vol 68 pages 6 497
to 6 501. There was also no evidence
that the blood on the seat was
the blood of accused number 25 as the results of any analysis of
this blood sample was never submitted.
The vehicle depicted in
Exhibit “H” photo 74 and 75 does not appear to be
damaged – Exhibit “H”
Vol 69 page 6622 to 6624.
Mans testified about the damage but this evidence related to the
vehicle in Exhibit “L”
photo’s 65 to 70. Photo 65
is not the vehicle depicted in photo 74. The two BMW vehicles
identified by Sithole were found
at the Penicuik scene –
record Vol 4 page 328 line 10 to page 329 line 10. The Court was
accordingly wrong in finding that
“Accordingly, Sithole’s
identification of the BMW recovered at Charters appears to be
accurate” as Sithole
did not see or identify the BMW recovered
at Charters.
[55]
2003
(1) SACR 97 (SCA).
[56]
S
v Mbuli
supra para 72.
[57]
2013
(1) SACR 137 (SCA).
[58]
Buthelezi
AJ concurring.
[59]
S
v Zumani and others
2015 (1) SACR 84
(GJ) para 4.
[60]
Judgment:
page 10 157 – 10 158
[61]
Judgment:
page 10 160 lines 12 – 25.
[62]
Judgment:
page 10 161 lines 7 – 16.
[63]
Judgment:
page 10 164 – 10 165
[64]
2003
(6) SACR 505 (CC).
[65]
S
v Thebus and another
supra para 18.
[66]
S v
Thebus and another
supra paras 18, 22, 34 – 37, including fn 60.
[67]
S
v Mgedezi and others
1989 (1) SA 687
(A) at 705 – 706B.
[68]
S
v Mgedezi
supra.
[69]
S
v Thebus and another
supra n64 per Moseneke J.
[70]
Paragraphs
2 and 3 of the Preamble to the indictment. Paragraph 3 records that
‘The guilt of that/those accused in respect
of crime(s) where
he/they was/were not present on the crime scene or did not
physically participate in the crime(s), is imputed
to that/those
accused by virtue of the doctrine of common purpose. This is on the
basis that all the accused, whether expressly
or by inference,
formed and embarked upon the aforesaid design, and that all the
crimes were perpetrated and or acts which were
committed during the
commission of the aforesaid crimes, indeed fell within the scope of
the common design and within the mandate
of the individual accused
and other assailants.’
The doctrine of common
purpose is of course something entirely separate and distinct from
conspiracy. Paragraph 3 of the indictment,
although expressly
referring to common purpose, perhaps inaccurately in the language
normally associated with conspiracy, sought
to impute liability to
the accused not present at the scenes of the crimes or not having
physically participated in the crimes,
on the basis that all the
accused had embarked on this ‘design’ and that ‘the
commission of the aforesaid crimes’,
indeed fell within the
scope of the ‘common design and within the mandate of the
individual accused and other assailants’.
Although this might
also suggest reliance on conspiracy. Although the indictment might
inaccurately refer to this as the ‘basis’
for imputing
liability based on ‘common purpose’, the indictment did
in my view sufficiently appraise the accused
that the State would
rely on the doctrine of common purpose with the detail being simply
the manifestation of that common purpose.
[71]
See
the Judgment of the court
a
quo
:
page 10 127 lines 19 – 24.
[72]
Judgment:
page 10136 lines 4 – 12.
[73]
Judgment:
page 10 012 lines 15 – 19
[74]
Judgment:
page 10 012 line 22 – page 10 025 line 7
[75]
These
factual statements have been criticized by the defence as factually
incorrect with reference to the photographs that were
taken of the
scenes. Mr Slabbert was critical of these twenty seven reasons,
submitting that:
(a) These reasons can be
applicable to any other robbery at any other place in South Africa.
(b) The second finding
is based on an incorrect interpretation of the evidence, The court
found that
‘
In
each case the terrain on the sides of the road was wide and level
with the road surface and free of possible impediments such
as
culverts, drainage ditches……’.
(c) The photos exhibit
“L” photo 47 did not support this finding and a drain is
depicted where the Dyna capsized.
The road is also not ‘level
with the road’.
(d) The majority of the
findings were based on speculation. Objects and vehicles that were
at the one scene were not at the other
scene.
(e) Despite the 27
reasons the court made the same incorrect application of the
doctrine of common purpose as in the
Dewnath
case. [See
Dewnath v S
[2014] ZASCA 57]
(f) The Court did not
consider the differences in the two scenes such as:
(i)
There was no evidence as to what make of vehicle was used to collide
with the Hi-Ace at Charters Creek. The State and the
investigating
officer were both speculating what kind of vehicle was used;
(ii) The different
languages spoken by the perpetrators at the scene;
(iii) The one BMW found
at Charters was not one of the vehicles which was seen by Sithole on
the morning of 2 October 2006.
Such factual
inaccuracies as there may be do not however detract from the
persuasiveness of the collective impact of the remaining
reasons
advanced by the trial court for the conclusions that were reached.
[76]
Represented
by Mr Slabbert.
[77]
Represented
by Mr Fraser.
[78]
2010
(2) SACR 11 (SCA).
[79]
1989
(1) SA 687(A).
[80]
2003
(6) SA 505 (CC).
[81]
The
apparent disproportionate shares are probably due to the fact that
accused 1 was a leader or co-ordinator of the Durban accused
and
accused 20 took part in the successful robbery at Charters
,
whilst accused 8 probably was not at Charters and therefore did not
receive an equivalent sum. It is however unnecessary to speculate.
[82]
I
take due cognizance of Mr Slabbert’s argument that this was
possibly inadmissible as it was in the nature of a confession
which
although not made to a policeman, was made in the presence of a
policeman. But even if it is ignored, the other considerations
outlined in this paragraph remain. Persuasive.
[83]
Accused
5 was travelling in the red kombi.
[84]
Mr
Slabbert argued that accused 20 provided an explanantion for accused
8’s possession of the money and why accused 8 was
driving the
car of the wife of accused 20, the latter apparently being too
tired. But this was for accused 8 to explain so that
his evidence
could be tested on these aspects.
[85]
2001(1)
SA 912 (CC) para 24 at 923E-F.
[86]
2009
(1) SACR 523 (SCA).
[87]
The
court held in regard to the statement of accused 13:
‘
To
determine the factual issues would require that I pronounced upon
credibility at this stage, which is ill-advised. Certain
of the
issues placed before us during the inner trial required that the
evidence be evaluated and that this Court should pronounce
on
whether it believes the State witnesses as opposed to the accused,
as well as the effect on admissibility of the factual issues
in
respect of the inferences to be drawn from the silence of those
accused who decided not to testify in the inner trial.
In the circumstances I
am constrained to deal at the end of this case during the final
judgment with the reasons for allowing
certain statements and
disallowing certain statements, as I shall announce anon. Certain
legal issues which require determination
resulted from the issues
highlighted in the inner trial. Those too I shall address, for the
sake of convenience, fully during
the final judgment in these
proceedings. However, with regard to the statements I have decided
to disallow I shall very briefly
furnish some of the reasons that
moved us.
In the result I allow to
become part of the body of the evidence before this Court the
statements marked KK13, in other words
the one applicable to accused
13, KK17, KK18, KK19, KK22 and KK23. The numerical reference in the
exhibit is a reference to the
number of the accused, whilst the
letters refer to the number of the exhibit in question. Expressed
differently, the statements
made by accused 13, 17, 18, 19, 22 and
23 are admitted in evidence.’
[88]
In
respect of accused number 13 see record page 4 284 and more
specifically page 4 295. Extra curial admissions are not admissible
against a co-accused – see
S
v Litako
2014 (2) SACR 431
(SCA) para 67 at 451g and
Mhlongo
v S; Nkosi v S
[2015] ZACC 19.
[89]
During
the State’s case.
[90]
2001
(1) SACR 703
SCA.
[91]
2011
(2) SACR 482 (SCA).
[92]
There
is of course not two tests involved. There is only one test in a
criminal case and that is whether the evidence establishes
the guilt
of the accused beyond a reasonable doubt. This test has two
perspectives. Ultimately the issue remains, as was stated
in S v
Sithole and Others
1999 (1) SACR 585
(W) at 590g-i, quoted with
approval in S v Musiker
2013 (1) SA 517
(SCA) at 523 b-e, that ‘In
order to convict, there must be no reasonable doubt that the
evidence implicating the accused
is true, which can only be so if
there is at the same time no reasonable possibility that the
evidence exculpating him is not
true.’
[93]
At
page 6353.
[94]
The
police however denied, consistent with the version of accused 13)
that he was in possession of a cell phone at the time of
his arrest.
[95]
There
was no proof whatsoever that it was his number.
[96]
Not
that it is all that material, the correct position is that the
evidence was not that Mncube kept the white kombi within sight
all
the way from accused 24’s home to Mvoti.
[97]
The
trial judge himself remarked at page 6361 line 20, that ‘Kehla
is a common name. It means an old respected person’.
[98]
In
the light of the conclusions reached earlier it is not necessary to
consider this aspect further. Suffice it to conclude, as
in
S
v Musiker
2013 (1) SACR 517
(SCA) at 527d-e para 26, that ‘Had it not
been for my conclusion that the appellant’s alibi was wrongly
rejected
these various factors, taken together, may well have
justified a finding that the appellant had not had a fair trial. In
the
light of that decision, however, it is unnecessary to reach a
conclusion in regard to this latter issue.’
[99]
These
calls were fully analysed in the judgment of the court
a
quo inter alia
when dealing with what was termed the so-called ‘second
excursion’ and will in the interests of brevity not be
repeated herein.
[100]
Bheki
had been with accused 26 on the day of his arrest.
[101]
Particularly
section 35(3)(h) and (j) of the Constitution, which include
the right:
‘
(h)
to be presumed innocent, to remain silent, and not to testify during
the proceedings’
(j) not to be compelled
to give self-incriminating evidence’
[102]
R
v Dhlumayo
1948
(2) SA 677 (A).
[103]
That
is accused 26’s girlfriend, Ms Zama.
[104]
Having
earlier indicated that the State did not intend calling Ms Zama but
then applying that the court calls her as a witness
is curious. It
seems the only explanation is that the State did not want to call
her and then not be allowed to cross examine
her, whilst that option
would be open if the court was persuaded to call the witness.
[105]
Act
No 51 of 1977.
[106]
2003(1)
SACR 313 (SCA) para 6.
[107]
At
pages 10 090 ff of the Judgment.
[108]
See
the court’s detailed reasons at pages 10 063 to 10 066.
[109]
Mr
Slabbert had in his practice note conceded liability in respect of
accused 1, 6, 7, 14, 20, 22, 24 and 25 in respect of the
Charters
robbery and the secondary offences in relation thereto. However in
argument he made the concession in respect of accused
1, 6, 7, 14,
20, 22, 24 and 25 in respect of counts 9, 10 and 11 only. Possibly
he was by then influenced by the concessions
made by Mr Fraser for
accused 2, 9, 15, 16, 18, 21 and 23 which although covering both the
Charters robbery (count 9) and the
Penicuik attempted robbery (count
6), extended insofar as the secondary offences were concerned, to
only counts 7 and 8 in respect
of Penicuik and counts 10 and 11 in
respect of Charters and not also the other counts in respect of
Charters. In the interest
of justice I shall consider the guilt of
the accused to all these secondary offences irrespective of any
concessions made.
[110]
2004
(2) SACR 22
(SCA) para 9.
[111]
As
for example there would have been had an accomplice who was part of
the prior agreement testified on behalf of the State.
[112]
His
submission is based on the evidence that the deceased was not
visible in the rear of the LDV and the bullet according to Nkabinde
first struck the canopy and then ricochet down to where the deceased
was. The evidence was:
‘
M’Lord,
there was a bullet that struck the truck where you …[indistinct]
where you …[indistinct] struck there
and the bakkie that we
were travelling on, the canopy at the back had not glass and there
is a bullet that went straight and
struck the deceased and there
were some other bullets …[indistinct]. When you look at
those entrance of those bullets,
they look like they were coming
from on top of the canopy.’
[113]
Act
No 101 of 1998.
[114]
Submissions
were advanced in the heads of argument that certain of the sentences
on the other counts, confined now to those in
respect of which the
convictions have been upheld, induce a sense of shock, or are
inappropriate and in the case of the robberies
the minimum sentence
of 15 years imprisonment should not be imposed lightly having regard
to the fact that the applicants were
detained under very difficult
circumstances and that they appeared in court in leg chains on each
and every day that the court
was sitting and were detained in the
holding cells at court in leg chains. It is not open to this court
on appeal to address
the severity of any of those sentences.
[115]
S
v Matlala
2003(1) SACR 80 (SCA) para 7.
[116]
2015
(1) SACR 508 (GJ)
[117]
2009
(1) SACR 252
(SCA).
[118]
2012
(1) SACR 369 (SCA).
[119]
2013
(2) SACR 165 (SCA).
[120]
2012
(2) SACR 1 (SCA).
[121]
S v
Mqabhi
supra fn 114 para 38.
[122]
2012
(2) SACR 1 (SCA).
[123]
There
was no appeal against count 31 and accused 14’s conviction on
that count is accordingly not affected by this judgment.
The
sentence of three months’ imprisonment on count 31 does
however feature in respect of this court’s findings on
the
appeal against sentence.