S v Shange and Others (CC169/07) [2012] ZAKZPHC 69 (29 June 2012)

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[2012] ZAKZPHC 69
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S v Shange and Others (CC169/07) [2012] ZAKZPHC 69 (29 June 2012)

331
IN THE HIGH COURT OF
SOUTH AFRICA
NORTH EAST CIRCUIT
LOCAL DIVISION
Case Number: CC169/07
In the matter between:
THE STATE
versus
MFANUFIKILE GOODWILL
SHANGE
,,,,,.............................
Accused
1
FOX SITHOLE
........................................................................
Accused
2
ZOFANIA MTHETHWA
...........................................................
Accused
3
SAKHELE JAN SIBISI
............................................................
Accused
4
FANI JOHANNE MBONAMBI
................................................
Accused
5
SISUSISO BENEDICT
SHABALALA
.....................................
Accused
6
XOLANI MHLUNZI
BUTHELEZI
.............................................
Accused
7
THEMBA NQOBIZITHA
KHATHIDE
......................................
Accused 8
MPHO PATRICK TSOTENSI
..................................................
Accused
9
LEBOHANG LEBO MOTHEPU
...........................................
Accused
10
FLAVIO JOSE LOUIS
..........................................................
Accused
11
BHEKINKKOSI LEAONARD
KUNENE
...............................
Accused
12
JOHANNES KHEHLA LANGA
........................................................
Accused
13
SIPHO MHLONGO
................................................................................
Accused
14
THABO OSCAR MAHOA
...................................................................
Accused
15
Sipho PEREY 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 NLANGAMANDLA
................................................
Accused 22
HAMILTON LIZOKA
MAZIBUKO
.........................................
Accused
23
MBUSO MNCUBE
...............................................................
Accused
24
EDDIE KALANGA UBISI
.....................................................
Accused
25
THULANI BLESSING
MTHETHWA
....................................
Accused
26
J U D G M E N T
COMBRINK, J:
INTRODUCTION
Originally there were 26
accused who were indicted on 31 charges of murder
,
attempted
murder
,
armed robbery
,
attempted armed robbery
,
kidnapping
,
motor vehicle hi
-
jacking
,
theft of
motor vehicles and an assortment of charges framed under the Arms
Control Act
.
During the course of this protracted and
difficult trial accused number 10 passed away
.
I commenced the
trial sitting with two assessors
,
Mr Ian Reid and Mr Bruce
Dalling
.
Halfway through it
,
Mr Dalling unfortunately
passed away
.
We have sorely missed his valuable input
.
As required by law I had to decide whether to stop the proceedings
,
summon another assessor in Mr Dalling’s place and re
-
start
the trial
de novo
or to proceed with it sitting with Mr Reid
alone
.
I considered the latter course to be in the interest of
Justice and resolved accordingly
.
The trial commenced on 15
October 2007
,
a year after the offences were committed and
thereafter assumed monumental proportions
,
with a record
numbering in excess of 7 000 pages
,
augmented by documentary
exhibits which have to be read as part of it comprising of some 12
000 pages and a host of physical exhibits
.
What makes this
trial somewhat unique is the introduction of wide
-
ranging and
detailed cellphone evidence by the State
,
which took up
considerable time and effort and which the Court will deal with in
some detail later in this Judgment
.
Suffice it to say at the
outset that some 72 000 calls were analysed in order to place the
relevant evidence on record with various
experts testifying with
regard to the nature and reliability of information stored by the
Service Providers of cellphones used
by the public at large.
THE CARDINAL
ALLEGATIONS AGAINST THE ACCUSED
The crimes charged to the
accused and the associated allegations central to those may be
contextualised as follows
.
Two motor vehicles belonging to
Fidelity Cash Management Services (Fidelity) were conveying cash
along the N2 National Road
,
when they were ambushed
,
capsized and assaulted with firearms in order to rob them of the
cash
.
By all accounts the two
armed robberies occurred contemporaneously albeit some 30 kilometres
apart
.
The first to be reported occurred near the Charters
Creek turn
-
off from the National Road (hereinafter referred to
the Charters scene of crime or Charters as the case may be) and the
other took
place on the same National road in proximity of the
Penicuik turn
-
off near Kwambonambi (hereinafter referred to as
the Penicuik scene of crime or Penicuik as the need arises)
.
The attack at Charters forms the subject
-
matter of count 9 and
the attack at Penicuik count 6
.
The Charters and Penicuik
armed robberies may be looked upon as the primary offences around
which the occurrence of a number of
other secondary offences
,
no less serious
,
centred
.
At the primary crime scene at
Charters the secondary offences were as charged under counts 1
,
2
,
10
,
11
,
12
,
13 and 14
.
At Penicuik the secondary
offences are those charged to the accused in counts 3
,
4
,
5
,
7
,
8
,
15
,
16
,
17
,
18
,
19
,
20
,
21
,
22 and 23
.
TURNING TO CHARTERS,
THE SECONDARY OFFENCES IN QUESTION ARE THE FOLLOWING:
Counts 1 and 2
relate to theft of motor vehicles
,
where it is alleged that
the accused stole the motor vehicles in question to be used in the
cash
-
in
-
transit robberies and thereafter abandoned them
on or in the vicinity of the scene of crime
.
Counts 10 and 11
relate to attempted murder of the crew of the Fidelity motor vehicle
,
namely Mnguni and Mnqayi
,
the driver and crew respectively
.
Here the allegations are that the attempted murder arose from the
capsizing of the motor vehicle in which they were and shooting
at
them
.
Counts 12,
13 and 14
relate to them attempted murder of the three
policemen who chanced upon the scene where the robbery was in
progress
.
Here it is alleged that the accused attempted to
kill student Constable Biyela
,
Sergeant Mthethwa and Inspector
Khoza by literally riddling the police vehicle with bullets fired at
short range
.
PROCEEDING ON TO
PENICUIK,
THE SECONDARY OFFENCES IN QUESTION ARE:
Counts 3,
4
and 5
relate to the theft of 3 motor vehicles
,
the
allegation being that they were stolen to be used in the primary
robberies and thereafter abandoned at the scene
.
Counts 7 and 8
relate to the attempted murder of Thring and Ncwane the driver and
crew respectively of the armoured Fidelity motor vehicle by
forcibly
capsizing it and thereafter shot at the crew with heavy firearms
intended to penetrate the armour behind which the two
Fidelity
employees were ensconced
.
Count 15
relates to the robbery of one Msweli of his motor vehicle keys
.
Count 16 and 17
relate to the kidnapping of Msweli and his passenger
,
Mkhize
,
by forcing them to lie down as instructed at gunpoint
.
Counts 18,
19 and 20
relate to the hi
-
jacking at gunpoint
of a motor vehicle belonging to one Masango and the attempt made upon
his life by shooting at him and the subsequent
abduction of his
daughter
,
Nothile
,
who was a passenger in the motor
vehicle with him
.
Count 21
relates to the murder of a security guard in the employ of Maxim
Security
,
a certain Gumede
,
at a stage when the stolen
motor vehicles referred to in counts 3
,
4
,
and 5 were
being abandoned in a plantation road off the N2 at the Penicuik scene
of crime
.
Count 22 and 23
relate to the attempted murder of the two security guards in the
employ of Maxim Security
,
namely Nkabinde and Ntombela
.
Counts 24 to 30
inclusive
,
relate to charges framed under the
Firearms
Control Act 60 of 2000
in which it alleged that the accused were
found in unlawful possession of a variety of firearms and ammunition
thereto
,
ranging from handguns to automatic assault rifles
.
Count 31
applies to accused number 14 only and relates to his unlawful failure
to exercise proper control over his licenced firearm
.
The charges contained in
counts 24 to 31 will be dealt with at the end of the judgment.
Bearing in mind the
aforegoing analysis of the individual charges contained in the
Indictment
,
it is immediately apparent that all 25 accused
could not individually have committed or taken part in each offence
.
It is difficult
,
for example
,
to see how 25 accused
persons could individually take part in the theft of one motor
vehicle
.
In this regard the State
alleges that
,
except for count 31
,
all the offences
were committed by all the accused in the execution of a purpose or
design common to all of them
.
In that event
,
the
actions of one in implementation of the common design are imputed to
all of them
.
Accordingly the State relies on the doctrine of
common purpose to which we shall return to and deal with fully during
the course
of the Judgment
.
ARRAIGNMENT
All the accused were
legally represented throughout
,
but during the course of the
trial changed counsel a number of times and at the final stage to
date hereof were and are represented
by counsel appointed by the
Legal Aid Board
.
Thus Mr G Maree acts for accused 2
,
8
,
14 and 25
.
Mr H Fraser acts for accused 9
,
13
,
18
,
21 and 23
.
Mr T Botha acts for accused 4
,
5
,
15 16
,
17 and 26
.
Mr Parmanand acts for
accused 6
,
10
,
19
,
22 and 24
.
Mr Seedat
acts for accused 1
,
7
,
11
,
12 and 20
.
Upon arraignment each of
the accused pleaded not guilty to all the charges and to a man denied
complicity in any of the crimes charged
to them
.
Thereby they
placed in issue all the elements which the Prosecution is required to
prove in relation to the respective charges
brought against the
accused
.
Section 115 of the
Criminal Procedure Act provides a procedure in terms whereof an
accused person can choose whether or not to disclose
his defence to
the offences charged
.
Where the accused chooses not to do so
,
as here
,
the Court in its discretion may question the accused
to clarify the issues raised by his plea of not guilty
.
I
chose not to do so
,
as I was informed by the legal
representatives of the accused that the accused placed in issue all
the elements of each and every
charge preferred against them
.
That being the case
,
the lines were drawn and the State was
required to prove the accused’s guilt in respect of the
offences charged without knowledge
of the accuseds’ respective
defences thereto
.
As it turned out the defence raised by each
of the accused who testified was in the nature of an alibi disclosed
for the first
time in the witness box
.
THE UNCONTESTED FACTS
:
What follows is a summary
of the relevant facts which are either common cause or not seriously
challenged
,
bearing in mind the nature of the defences raised
by the accused and the absence of countervailing evidence proffered
on behalf
of them
.
For convenience and ease of reference these
facts are grouped under various headings with descriptive rubrics
.
THE PRIMARY OFFENCES:
It will be recalled that
,
in analysing the charges in the Indictment to determine the central
allegations there made involving the accused
,
we identified
two primary offences
,
namely the armed robbery of the
cash
-
in
-
transit vehicle belonging to Fidelity at
Charters and the attempted armed robbery of the Fidelity
cash
-
in
-
transit motor vehicle at Penicuik
.
Around those two were
clustered a number of divergent crimes
,
which we choose to
refer to as the secondary offences
.
FIDELITY’S CASH
MANAGEMENT PRACTICE:
In view of the fact that
the alleged crimes all related to attacks on cash
-
in
-
transit
vehicles
,
perhaps this is the appropriate stage in the
Judgment to describe the operations of Fidelity in receiving
,
conveying and dealing with the cash placed in their care by a variety
of clients – in the instance
,
chiefly from the area
generally known as Northern Zululand
.
From the evidence it
emerged that Fidelity operates a fleet of security vehicles
,
some of which are armoured
,
as in the case of Penicuik
,
and some not
,
as in the case of Charters
.
These
vehicles
,
normally manned by a driver who is alone in the cab
of the vehicle and a crew man who operates the closed section at the
rear
.
They travelled on a daily basis from their base at
Richards Bay to the places of business of the various clients
.
The purpose is to collect monies for banking by these clients
,
then return to the base where the company on behalf of the client
attends to the banking at the appropriate bank of the monies
thus
collected
;
and on the next trip to the client’s
business
,
deliver proof of the banked monies in the form of a
stamped copy of the deposit slip
.
In the case of the two
Fidelity vehicles involved in the primary offences both collected
cash from businesses situate from Petroport
in the south
,
some
10 kilometres from the town of Hluhluwe to Emanguzi in the north
,
which is close to the Mozambique border at Kosi Bay
.
All the mentioned clients
were supplied with the necessary serialised so
-
called
“stop
-
loss” bags
,
documents and other
material to ensure proper identification and security of all monies
collected and intended for banking
.
Some clients with large
cash turnovers opt for the “drop
-
safe” bags
whereby
,
as monies are received in the tills
,
multiples
of R1 000
-
00 are counted and sealed in the drop
-
cash
bag which in turn is pushed into a chute which leads to a built
-
in
drop
-
safe which is sealed and cannot be tampered with or
robbed
.
Inside the drop
-
safe is a so
-
called
“smart box” which is made of steel and ceramics into
which the money bags fall and can only be opened by use
of
specialised equipment kept at Fidelity’s base
.
Only Fidelity personnel
are authorised to remove the smart
-
box from the drop
-
safe
by means of a key and this only in the presence of the client’s
representative who simultaneously must use a special
tool to release
the box from the safe
.
On removal from the safe
the smart
-
box automatically becomes “armed” and
then can only be opened as mentioned above at Fidelity’s base
at Richards
Bay
.
Any unauthorised attempt to open the box
,
according to the evidence
,
would result in the cash contents
being rendered valueless because of the permeation thereof by
indelible dye
.
In the case of the two
vehicles attacked at Charters and Penicuik respectively
,
money
was collected from the same areas but from different clients
.
The practice was
,
also on the day of the attacks
,
2
October 2006
,
that the Hi
-
Ace Combi
,
robbed at
Charters
,
would do the necessary banking at Mkuze First
National Bank on their way out of monies collected the previous day
and kept overnight
in the safe of the base of operation at Richards
Bay
.
The Dyna
,
which was attacked at Penicuik
,
did not do banking
.
That vehicle collected
only money
,
which it would take to the base
,
which
would be banked by the personnel of the Hi
-
Ace the next
morning on their way out in order to serve Fidelity’s clients
in the areas aforementioned
.
On their way back to the base the
Hi
-
Ace would stop at the Mkuze FNB and collect from them the
deposit slips of the money which had been deposited at the bank that
morning
.
Thus on 2 October 2006
the Hi
-
Ace on its way out first stopped at the Mkuze bank and
there deposited the money which had been collected by the Dyna
previously
.
Hence the number of deposit slips which were in the
Hi
-
Ace when it was robbed
.
From there the Hi
-
Ace
proceeded to serve the clients in Northern Zululand as
aforementioned
.
During the course of the day the two vehicles
generally travelled together and were on their way back together
,
when the Hi
-
Ace had to turn off at Mkuze in order to collect
the deposit slips and other documentation dealing with Fidelity’s
handling
of the cash entrusted to them
,
the Dyna carried on to
Hluhluwe later to be joined there by the Hi
-
Ace again
.
From Hluhluwe the two Fidelity vehicles accompanied each other up to
Petroport plus
-
minus 10 kilometres south of Hluhluwe on the
N2
.
At that point the Hi
-
Ace
turned off into Petroport
,
a filling station
,
while the
Dyna carried on south
.
Thus
,
when the attacks upon the
vehicles occurred more or less simultaneously
,
they were
approximately 30 kilometres apart – the Dyna at Penicuik and
the Hi
-
Ace at Charters
.
CHARTERS – COUNT
9:
Although the Charters
robbery was reported after the Penicuik hold
-
up I find it
convenient to commence with the former
.
Sipho Mnguni and Bheki
Mnqayi were respectively the driver and crew of the Fidelity Toyota
Hi
-
Ace panel van (Hi
-
Ace)
.
It is a Combi
-
type
motor vehicle painted green
,
the typical colour of Fidelity’s
security vehicles
.
Both testified covering the same ground
.
The more detailed account of how the robbery evolved
,
understandably
,
came from Mnguni
,
the driver of the
Hi
-
Ace
.
His evidence was that early in the morning of 2
October 2006 they had set out from Fidelity’s base at Richards
Bay to collect
and bank monies emanating from various clients
,
as aforementioned
.
On that day they
collected money from as far afield as Ingwavuma on the north
-
western
border of KwaZulu Natal and Swaziland
,
and Emanguzi on the
north
-
eastern border of KwaZulu Natal and Mozambique
,
and were on their way back along the N2 National road
,
their
last collection point being at Petroport filling station just south
of Hluhluwe
.
Exhibit K is an inventory
of cash and related documents and banking receipts which they as crew
dealt with on 2 October 2006
.
The list is divided into
columns
,
which starting from the left
,
records
:
(1) the name of the client and the area in which the business is
situate
;
(2) a numerical code dedicated as specific to the
particular client
;
(3) the serial number of the receipt
furnished by the crew of the Hi
-
Ace to the client in which
receipt of the money or cheques
,
as the case may be
,
is
acknowledged
;
(4) “Bag numbers”
.
That
column reflects the client’s money which was placed in various
containers which differed widely
.
The so
-
called “bag”
could be a smart
-
box
,
which can only be opened at
Fidelity’s offices in Richards Bay
;
drop
-
cash
bags
,
four types of “stop
-
loss bags” with
dedicated code numbers which relate to the size of the
bag
;“
P
-
envelopes” – in which cheques
and deposit slips are placed
;
each container or bag is also
coded in such a way that
,
by reading the code
,
the
reader would know what type of “bag” he is looking at
;
(5)
the amount of money and cheques in the bag
.
Exhibit K also tabulates
in the remaining four columns – the amount of cash and cheques
that were stolen
.
Only the money was computed in order to
determine the amount of cash lost in the robbery
;
the bags that
were found at the scene of crime at Charters – some empty and
some with cash in them
,
together with a note of the deposit
books and slips recovered on the scene
.
Mnguni testified that
they arrived at the Petroport filling station at approximately 18h00
and departed at plus
-
minus 18h10
.
That time estimate is
also confirmed by the witness
,
Smalman
,
the
owner/manager of the filling station
.
Immediately upon
entering the N2 from the filling station in a southerly direction
Mnguni noticed the headlights of a motor vehicle
emerging from the
filling station behind him
,
which thereafter appeared to him
to be following the Fidelity vehicle
.
What held Mnguni’s
attention was that the motor vehicle following behind kept the same
distance
,
notwithstanding the fluctuating speed of the Hi
-
Ace
.
After they had passed the
Charters Creek turn
-
off
,
approximately 15 kilometres
south of the Petroport filling station and plus
-
minus 20
kilometres north of Mtubatuba
,
the following headlights
disappeared for a while
,
only to re
-
appear again
,
but this time at speed
.
Being uneasy
,
he mentioned that
to his crew Mnqayi
,
who was sitting next to him at that stage
.
The latter suggested that they move to the side of the road to allow
the motor vehicle to pass
.
Mnguni did so
,
but instead
of passing the Hi
-
Ace
,
the pursuing motor vehicle moved
to the opposite side of the road and then suddenly and violently
swerved back to the Hi
-
Ace deliberately smashing into the
right
-
rear corner of the Fidelity vehicle
.
That caused
Mnguni to lose control of the Hi
-
Ace
,
which swerved to
the opposite side of the road out of control and overturned off the
road on the western side thereof
.
The extensive damage to
the Hi
-
Ace which followed included the loss of the windscreen
,
leaving an opening through which Mnguni and Mnqayi egressed
.
Mnguni’s
first awareness at that stage was of gunfire in the dark and the
rain
.
At that stage he did not know where the shots emanated
from or what the target was
.
However
,
subsequently he
found bullet damage to the roof of the Hi
-
Ace
.
Both Mnguni and Mnqayi
sustained collision injuries including lacerations to the scalp which
bled profusely
.
The assailants repeatedly
shouted “down”
.
Mnguni prostrated face
-
down
with a gun to his head
.
He was forcibly deprived of his
wedding ring
,
money and the Fidelity revolver
,
a Rossi
.
38 special
.
Whilst face
-
down on the ground
,
Mnguni heard a multitude of voices and sounds emanating from the
stricken Hi
-
Ace
.
He was under the impression that the
sounds emanated from the plundering of the vehicle
.
Mnguni’s
limited observation
,
further hampered by the dark and rain
,
is substantiated by the photographic material placed before us
,
considered in conjunction with the evidence of the police’s
Forensic Unit
.
That served before us in the form of a plan of
the scene of crime and the descriptive key thereto
.
The photo
exhibits reveal extensive damage to the vehicle and in particular
,
its roof
.
The nature of the damages to the latter suggests
that it was hacked rather than cut open
.
This inference is
strengthened by the presence of a heavy hammer and a large axe
discovered next to the capsized vehicle afterwards
.
It would seem that the
plundering of the Hi
-
Ace took place in great
haste
.
Understandably
,
given that it was taking place on
the N2 in the dark and rain withtraffic heaping up on both sides of
the crime scene
.
Mnguni lay face
-
down
listening
,
because he could not see what was happening
.
Someone shouted that the police had arrived and shooting immediately
erupted
.
From the shouted conversation and sounds of increased
activity at the Hi
-
Ace Mnguni deduced that some of the
assailants were asking to hand over “things”
,
being taken from the capsized vehicle
.
Thereafter the
assailants appeared to have departed in a hurry
.
That piece of evidence
dove
-
tails perfectly with the evidence in relation to counts
12
,
13 and 14
,
arising from the shots fired at the
police
,
who had chanced upon the scene at about 18h30
,
during which one of the robbers
,
said to be accused 25
,
was shot and injured
.
That that occurrence had
,
in a
sense
,
cut short the looting is supported by the evidence of
what was found by the police at the scene of crime in the vicinity of
the
Hi
-
Ace
.
In their haste the
assailants left behind a number of stop
-
loss bags containing
some R350 000
-
00 in cash
,
retrieved from in and outside
the vehicle
.
What appears to have been stolen is the amount of
R1 118 413
-
00
.
The individual items belonging to the
Fidelity customers
,
which were conveyed in the Hi
-
Ace at
the time
,
are listed and described in Exhibit K and confirmed
in the evidence of Mnguni and
,
particularly Mnqayi
.
Mnqayi testified concerning the assignments regarding banking and
collecting of customer
-
money undertaken by the crews of the
Dyna and the Hi
-
Ace respectively on 2 October 2006
.
Briefly
,
the Dyna collected cash only and was on its way back
to the Fidelity office at Richards Bay when they were ambushed
.
The Hi
-
Ace on its way out
,
banked at FNB
,
Mkuze
,
the money held overnight at the Fidelity base at Richards Bay and
obtained the relevant deposit slips on the way back
.
Having
visited the areas and collected the money from Fidelity customers and
having collected the deposit slips from Mkuze
,
the Hi
-
Ace
was on its way back when the Charters robbery occurred
.
We hold that, save for
the identity and criminal responsibility of the perpetrators, the
robbery of the Hi-Ace (count 9) had been
proved beyond a reasonable
doubt.
SECONDARY OFFENCES AT
CHARTERS
ATTEMPTED MURDER OF
THE HI-ACE CREW – COUNTS 10 AND 11
There appears to be
insufficient evidence that the shooting that emanated
contemporaneously to the capsizing of the Hi
-
Ace was aimed
directly at Mnguni and Mnqayi
.
In our view the shots were
rather fired
in terrorem
,
directed at subduing the crew
of the Hi
-
Ace and convey notice that resistance would be
futile
.
Accordingly
,
those actions on the part of the
assailants did not constitute an attempt upon the crew’s lives
.
Having said that
,
however
,
we are left in no doubt that
the act of deliberately smashing into a relatively fast
-
moving
motor vehicle with a view to causing the driver to lose control
thereof so that it would run off the road and possibly overturn
,
as happened in the instance
,
does amount to an unlawful and
malicious attempt to murder the driver and the crew or whoever else
was in their company
.
There can be little doubt and we have
none
,
but that the actor engaged in smashing his motor vehicle
into another with the aforementioned purpose
,
subjectively
foresees the possibility that the targeted vehicle might capsize and
cause the death of the occupants
.
Where
,
as here
,
the assailant
,
alive to that possibility
,
nonetheless
causes such a collision
,
acts with reckless disregard to the
possible fatal consequences and renders himself and all others who
share his purpose in that
regard
,
guilty of murder
,
where death of the occupants ensues and
,
where not
,
guilty of attempted murder
.
All that remains to be established
is the identity and criminal liability of the assailants, to which we
shall return anon.
ATTEMPTED MURDER –
COUNTS 12,
13 AND 14
The incident which gave
rise to those charges sprang from the traffic stoppage engineered by
the robbers to keep the ordinary road
traffic away from the scene of
the actual robbery as described earlier
.
Three policemen
,
stationed at Kwamsane at Mtubatuba
,
had been engaged in a
routine patrol at Shikishela
,
a rural hamlet just off the N2
in the vicinity of the Charters scene of crime
.
They were on
their way back to their station
,
using the N2
,
when
they encountered motor vehicles with their hazard lights on
,
stationary in their lane and facing the same way – south
.
That
,
according to Biyela
,
the driver of the police
vehicle
,
was at 18h30 and it was deep dusk with rain
.
He had been driving with his van’s headlights full on
.
They were in a properly marked Isuzu four by four double cab bakkie
.
The vehicle was
immediately identifiable as a police vehicle
.
Inspector Khoza
was a front
-
seat passenger and Constable Mthembu was seated in
the rear
.
They stopped their vehicle believing that there had
been an accident at some point on the road ahead of them
.
Biyela brought his vehicle to a stop behind a “Clover”
truck which blocked their view beyond it
.
Inspector Khoza was
busy trying to engage the official blue light
,
when a Mercedes
Benz pulled up behind them
.
In his rear
-
view mirror
Biyela observed a man exiting from the driver’s door and
approaching the police vehicle on his
,
the driver’s
side
.
The man was next to his window
.
He shouted at
Biyela to get out
,
adding the usual expletive with reference
to the maternal anatomy
,
whilst pointing a rifle at him
through the driver’s window
.
The assailant presented as
an adult black male
.
Biyela
,
it would seem
,
instinctively ducked to his left away from the threatening firearm
.
At the same time his assailant started shooting
.
Biyela heard
other firearms also joining in
.
He was aware that his
motor vehicle was struck by a number of bullets and later found that
there were bullet holes in the backrest
of his seat
.
Whilst in
the process of still ducking towards his left
,
Biyela returned
fire at the man shooting at him and believed that he had struck the
latter in the upper body
.
The wounded man went to his knees
and started crawling away screaming “the dog shot me”
.
At that point Inspector Khoza had already departed the police vehicle
through the left passenger door and into the bush
.
So
,
apparently
,
had Constable Mthethwa
.
With the assailant
outside his window out of the way
,
Constable Biyela jumped out
of the front door of his vehicle
,
ran across the road and into
the bush – all the way being pursued by bullets
,
clipping the shrubbery around him
.
As he fled from his vehicle
Biyela saw the person he had shot being assisted away into a dark
“old shape” BMW without
registration plates
.
Biyela took refuge in a nearby homestead and later returned to the
scene
,
where he found other policemen present
.
He then
noticed that he had happened upon a cash
-
in
-
transit
robbery
.
He found his police vehicle where he had left it
,
the engine still running
.
The Mercedes Benz that
had parked him in was still behind his vehicle
.
The dark BMW
,
into which the wounded assailant had been assisted
,
was no
longer on the scene
.
However
,
that vehicle appears to
have been recovered some 1 kilometre removed from the scene of crime
with evidence of blood in and on it
and the relevance thereof will be
discussed
anon
.
Photographs collected in
Exhibit E reveal substantial bullet damage to the police van in
question at a level and position on it
that makes the inference
inescapable that the occupants of the police vehicle were directly
targeted by the gunfire directed at
it
.
The two policemen who
accompanied Biyela in the police vehicle did not testify
.
Indeed
,
there appeared to be no need for that
,
given
that the cross
-
examination of Biyela
,
apart from
questions directed at testing the veracity and reliability of his
account of the events
,
did not effectually place in dispute
any of the material facts testified to by him
.
Nor was it
suggested on behalf of the accused that an adverse inference is to be
drawn from the absence of their evidence
.
In the light of Biyela’s
uncontested evidence
,
particularly dealing with the way the
police vehicle and its occupants were shot at by the attackers and
the gunshots that followed
Biyela in his flight in and through the
bush
,
leaves us with no doubt but that the assailants were
possessed of the requisite
dolus
,
intention to kill and
murder the complainants referred to in counts 12
,
13 and 14
.
All the elements of the respective offences of attempted murder have
been proved beyond reasonable doubt
.
What remains to be
established is the identity and liability of the assailants
.
That comes up for consideration later
.
THEFT OF THE BMW –
COUNT 2
W A Mans
,
the
owner of the motor vehicle
,
which forms the subject
-
matter
of this charge testified that on Saturday 26 August 2006 he had
dropped his daughter at school at Roodekranz
,
Johannesburg
,
Gauteng Province
,
when the vehicle
,
a dark blue 7
series BMW was stolen from where it was parked in the street
.
He actually saw it being driven away
.
With the help of a
security guard they gave chase in the latter’s vehicle
.
However
,
they were unsuccessful
.
He reported the theft
to the police without success
.
Sometime later
,
during October 2006
,
after the Charters robbery
,
he
identified his vehicle at the Police Station at Mtubatuba
.
The
identification was positively made in that the engine and chassis
numbers on the motor vehicle corresponded with the registration

papers which he had with him and
,
further
,
with
reference to scratches and marks on the vehicle
,
which only an
owner would have known of
.
He testified that the vehicle had
been damaged after the theft thereof
.
To him it appeared that
his vehicle had been involved in a collision and sustained damage to
the front
-
left corner and side
.
He was however able to
drive his vehicle away from the Police Station
.
Tangential to this
evidence is the testimony of Constable Xulu
,
who discovered
the BMW in the plantation on a gravel road off the N2 at bridge L on
the same night
.
The bridge in question crosses the N2 from
east to west with glide
-
offs on the western side
.
The
bridge is close to the Charters scene of crime
.
The vehicle
was taken to the Mtubatuba police station
.
The photographic
evidence placed before us depicts the BMW in question
.
The
collision damage described by Mans is clearly evident in those
.
Upon examination of the
retrieved BMW there was found what appeared to be blood on the seat
and the wheel rim of the vehicle
.
Samples taken from the
relevant areas revealed that it was indeed blood and the DNA
comparative tests revealed that the blood on
the vehicle matches the
samples taken from accused number 25 to a degree beyond any question
.
The blood on the vehicle was that of accused 25
.
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
.
The aforementioned
Sithole
,
as will appear
,
saw the rear blind of the BMW
which he was following on the R34 being drawn when he stopped behind
it at a robot in Empangeni
.
It appears significant that the
photographs he identified it from show a blind across the rear
window
,
whilst the photograph of the BMW used at Penicuik to
upend the Dyna do not show a drawn blind
.
Accordingly
Sithole’s identification of the BMW recovered at Charters
appears to be accurate
.
THEFT OF THE WHITE
MERCEDES BENZ C180 WITH REGISTRATION NUMBER RZF 712 GP – COUNT
1.
This motor vehicle
belonged to Avis
,
a car rental company
.
According to
the evidence of J Venter
,
a Regional Manager of the company
,
the vehicle was robbed from the Centurion branch of Avis at Pretoria
on 7 February 2006
.
At the time it had done 317 kilometres as
shown on the odometer
.
On 24 November 2006 he identified the
vehicle then in the custody of the police
,
as the one which
had been robbed
.
His evidence of the identification was
detailed and beyond question
.
At that stage the odometer
reading was 40 173 kilometres
.
The vehicle in question
was identified by Constable Biyela as the white Mercedes Benz that
stopped behind him and whence came the
person who shot at him and
whom he injured in return fire
.
Afterwards the vehicle was
recovered by the police from where it was still parked behind
Biyela’s police van
.
Like the BMW this
Mercedes Benz was used in execution of the Charters robbery and
abandoned afterwards
.
As will appear later in
the Judgment
,
the Mercedes Benz also was one of the motor
vehicles encountered by a certain Sithole on the R34 to Empangeni and
from there on
to the house of accused number 24 at Mzingazi
,
Richards Bay
.
Sithole identified both the BMW (from a
photograph as similar)
,
and the Mercedes (conclusively on
sight)
,
at the Charters scene after the robbery
,
when
,
as an official of Fidelity
,
he visited the scenes of crime
.
As in regard to the other
counts dealt with thusfar
,
the theft of the Mercedes Benz has
been established beyond reasonable doubt
.
What is outstanding
at this point is the identity of the thief or thieves
,
as the
case may be
,
bearing in mind that theft is a continuing
offence
.
PENICUIK – COUNT
6:
RELATING TO THE
ATTEMPTED ROBBERY OF THE DYNA
The Fidelity vehicle
involved in this charge was a green Toyota Dyna armoured truck
.
The unique composition of this vehicle is also the key to the failure
of this cash
-
in
-
transit robbery
.
The vehicle
comprises a driver’s cab and an enclosed bin at the back
thereof
.
The cab and the bin are totally separated from one
another
.
The driver’s cab has the usual appointments
found in an ordinary driver’s cab of a truck of this nature
.
However
,
the panelling
,
side windows and the windscreen
are re
-
inforced so as to be bullet
-
proof
.
Likewise the side walls and roof and the back door of the bin –
being the only access to the rear of the Dyna – together
with
two small glazed windows are re
-
inforced so as to be
impregnable to tools usually employed by robbers to gain access to
the cash
.
On the day in question
,
2 October 2006
,
which followed shortly upon the month
-
end
when a lot of cash changed hands
,
the Dyna’s crew
collected cash takings from the Fidelity clients spread throughout
the north eastern reaches of KwaZulu Natal
.
Unlike the Hi
-
Ace
,
the Dyna’s crew did no banking
.
It collected cash only
which was destined to be taken to the Fidelity base at Richards Bay
,
to be held overnight for banking the next day
.
Having
completed its collection rounds
,
the Dyna was on its way back
to Richards Bay
,
when it was beset by robbers on the N2 at
Penicuik
.
The Dyna was at all times
driven by one Thring
,
who was on his own in the cab
.
His crew
,
a certain Ncwane
,
was locked into the bin
.
The only form of communication between driver and crew was through an
intercom system
.
As they approached the Penicuik scene of
crime
,
Thring saw in his rear
-
view mirror the
headlights of a fast
-
approaching motor vehicle
,
which
he saw later was what he described as a “silver” 7
-
series BMW
,
apparently on a collision course with the Dyna
.
Practically immediately after that a violent impact occurred to the
right
-
rear of the Dyna
.
Later that evening after the
event
,
Thring saw the BMW on the scene exhibiting impact
damage to its left
-
front corner
,
which corresponded
with the damage of a similar nature to the rear corner of the Dyna
.
The BMW’s impact
caused Thring to lose control of the Dyna
,
which spun around
across the road and off it
,
where it overturned and ended up
on its left side facing
,
after a fashion
,
in the
opposite direction whence it came
.
Contemporaneously Thring
heard gunfire which he believed was directed at the Dyna
.
Due
thereto that the Dyna came to rest on its left side
,
Thring
had fallen to the passenger side of the cab
,
where he lay
prone on the passenger window
,
which was resting on the
ground
.
In the headlights of the BMW or some other vehicle
behind the Dyna
,
Thring could see a man armed with a rifle
.
That man tapped on the windscreen with the rifle barrel
,
shouting to him in Zulu to get out
.
Thring pretended that he
was unconscious
,
believing that he was relatively safe behind
the bullet
-
proof windscreen
.
He did not respond
,
but the demands to open and get out continued
.
At the same
time he heard what he considered to be gunfire from an automatic
rifle
.
The shots coincided with the sounds of bullets hitting
the bin of the motor vehicle
.
During all of this Thring
managed to call his Richards Bay base informing them that he was
under attack
.
He used the spoken code
intended for such an emergency – “opskud Penicuik”
– thus furnishing knowledge of
the robbery as well as the
location
.
Such alerts are noted by the recipient at the base
,
who makes a note of the report as also the time it was received
.
In the instance it appears uncontested that the recorded time of
Thring’s alert was at 18h38
,
bearing in mind that at
this time the Charters robbery was also in progress
.
As Thring
lay there he took note of bits and pieces of the events
.
His
impression
,
judging from the raised voices outside
,
was
that there were quite a number of assailants gathered around the
vehicle on the scene
.
He heard the shouting directed at his
crew
,
Ncwane
,
in the rear to open the door and the
latter’s response that he was unable to – that the keys
were held at the Fidelity
offices
.
After a time the robbers
appeared to give up their efforts at accessing the cash
.
Sometime later the police arrived and Thring was assisted out of the
Dyna
.
Ncwane’s position in the Dyna was not conducive to
detailed observation
.
Locked into the rear of the vehicle he
could see nothing
.
He could only hear and feel
.
Thus his testimony that
he heard and felt the impact on the rear of the Dyna and experiencing
the vehicle spinning around and capsizing
,
he must have been
flung about like a rag doll
.
After the vehicle had come to a
rest he heard and felt the impact of bullets being fired at the back
of the vehicle
.
Voices outside the door demanded that he open
the door and come out
.
He became aware of attempts on the
outside to force open the bin door
.
Significantly
,
for
reasons to follow
,
he heard the sound of “a generator
used for cutting”
.
He was taxed on this observation in
cross
-
examination but persisted that the sound likened the
sound of a generator used for cutting
,
which he heard when he
was working at “Springbok”
,
although he was unable
to explain the workings thereof
.
Whatever one chooses to make
of the lack of detail
,
which accompanied Ncwane’s
inference that a cutting tool had been used on the bin door
,
photographic material (Exhibit D and OO)
,
clearly evidence
signs of tampering at the hinges of the door in question
.
All
three hinges on the door show signs of scouring around each
,
where the paintwork was destroyed and the underlying scoured metal
laid bare
.
The scouring marks appear consistent with the use
of a cutting tool of sorts
.
As will appear later in
the Judgment a large motorised petrol
-
driven angle grinder was
found in a white Combi driven by accused number 24 upon arrest of the
latter during the same night at Mvoti
Toll Plaza on the N2
.
Ncwane confirmed Thring’s evidence that after a while the
robbers left the scene and the police arrived about fifteen to
twenty
minutes later
.
After his emergence from
the Dyna
,
Thring observed the silver BMW which had rammed his
truck
.
It appeared to have been abandoned where it had come to
a stop after the collision
.
Photographs D8 and D9 reveal the
extent of the damage to the left
-
front of the BMW
,
which was manifestly extensive
.
That is understandable
,
given the mass and size of the truck it smashed into
,
causing
it to spin out of control and capsize
.
The evidence as outlined
suffices to prove beyond any doubt that the attempted cash heist
charged under count 6 was committed
.
Only the identity and
liability of the assailants remain outstanding
.
SECONDARY OFFENCES –
PENICUIK:
ATTEMPTED MURDER –
COUNTS 7AND 8
Under these two charges
it is claimed that the gunfire
,
which the assailants subjected
the Dyna to constituted an attempt to kill and murder Thring and
Ncwane
,
the driver and the crew of the vehicle
.
Both Thring and Ncwane
testified that the perpetrators fired at the Dyna with automatic
rifles
.
Indeed
,
the forensic examination of the scene
of crime subsequently undertaken by Inspector Mthiyane of the
Mtubatuba Local Criminal Record
Centre
,
revealed a substantial
number of spent bullet casings in the vicinity of the Dyna
.
Thring testified that a bullet scar was visible on the outside of the
door of the cab
,
which did not penetrate the reinforced panel
.
He also found a bullet hole in the front right side of the bin
,
which passed through the panel into the interior of the bin
,
where Ncwane was
.
However
,
it does
not end there
.
As in the engineered collision with the Hi
-
Ace
at Charters
,
the collision of the Dyna at Penicuik carried
with it the very real possibility of fatal injury to the crew
.
We entertain no doubt that the driver of the BMW subjectively foresaw
the risk that the crew of the Dyna might die in the accident
which he
manufactured
,
when he smashed his vehicle into the back of the
truck with a view to sending it out of control and possibly
capsizing
.
By deliberately creating the collision with the
Dyna
,
notwithstanding his appreciation of the risk to the
crew
,
the driver of the BMW demonstrably reconciled himself
with the possible fatal outcome of his actions
.
Accordingly
,
that driver
,
whoever he may prove to be
,
and all those
who shared that purpose in common with him
,
whoever they may
be
,
is/are guilty of the crime of attempted murder of both
Thring and Ncwane
.
MOTOR VEHICLE THEFT –
COUNT 3
This count deals with the
theft of an Isuzu bakkie from the possession of one Daniel de Bruin
.
This vehicle was found abandoned in the forest at Penicuik
.
De
Bruin testified and identified the vehicle as his property at the
Police Station at Isipingo
,
his vehicle having been stolen at
Scottsville – Pietermaritzburg on 12 September 2006
.
His
evidence was uncontested and we found that the State has proved this
count beyond a reasonable doubt
.
MOTORVEHICLE THEFT –
COUNT 4
This count relates to the
theft of a Nissan bakkie from the lawful possession of one Devenand
Sarjoo in Durban
.
Sarjoo testified that the vehicle was stolen
in Nicholson road on 13 September 2006
.
He later identified
the vehicle at Cato Manor Police Station on 16 October 2006
.
His evidence was uncontested
.
This vehicle was found abandoned
in the forest at Penicuik
.
We find that the state has proved
this charge beyond reasonable doubt
.
MOTOR VEHICLE THEFT –
COUNT 5
This count deals with the
theft of a White BMW that was abandoned after the Penicuik attempted
robbery in the nearby forest together
with the vehicles referred to
in count 3 and 4 above
.
The state alleged that
the theft of the BMW was from the possession or ownership of a person
or persons to the State unknown
.
In the nature of things
,
whether the BMW in question was stolen or not
,
is a matter for
inference from all the available facts
.
The paucity of
evidence of the actual theft of the vehicle and the absence of
established
animus furandi
in relation to this alleged theft
leaves this count unproved
.
THE BMW USED TO RAM
THE DYNA AT PENICUIK
This BMW did not form the
basis of any charge brought by the State
,
but it is important
to mention it at this stage of the judgment
.
This BMW was left
abandoned on the grass verge of the road at Penicuik in close
proximity to the capsized Dyna
.
This vehicle in the
photographic material before us in photographs 8 and 9 in album “D”
depicts extensive damage to
the left front thereof
,
probably
rendering it immobile after the collision with the Dyna
.
ROBBERY AND KIDNAPPING
– COUNTS 15,
16 AND 17
These charges concern the
alleged robbery and kidnapping of a certain Msweli at the Penicuik
scene of crime
.
The complainant
,
Msweli, testified that
at about 18
:
30 on 2 October 2006
,
he approached the
scene of crime from the north along the N2 in an Opel Corsa vehicle
,
when he came upon a white Nissan bakkie which was slowly driving
ahead of him
.
Msweli tried to pass the Nissan on the latter’s
correct side
,
when it moved to the right also
,
cutting
him off
.
Msweli then tried to pass on the Nissan’s left
side
,
using the emergency lane for that purpose
.
Again
the Nissan moved across and cut him off and came to a stop in front
of him
,
thereby forcing Msweli to stop also
.
Two men
armed with rifles came from the Nissan and
,
pointing the
firearms at him
,
instructed Msweli to hand over his vehicles
keys and to lie prone in the vehicle
.
Msweli complied with
alacrity
.
It would seem that Msweli’s was the first
vehicle to approach the scene of crime at Penicuik on the N2 from the
north
.
When next Msweli“peeped” to see what was
happening
,
he observed the Nissan leave at speed on the
incorrect side of the road and turn off to its right into the
plantation
.
Given the layout of the
terrain at the Penicuik scene of crime
,
as it appears from the
police plan and key
,
the gravel road into which the Nissan
turned
,
is a plantation road which crosses the N2 from east to
west
.
To the east the gravel road continues across a railway
line
,
which runs parallel to the N2 at that point and from
there heads into the plantation
.
To the west the gravel road
enters a plantation and continues on to the small town of
Kwambonambi
.
With that picture in mind
,
I turn to
Msweli’s evidence
.
He saw the Nissan turn into the bush
and “a lot of people” at that point
,
who were
stopping motor vehicles which approached the scene of crime from the
Empangeni side
,
i
.
e
.
from the south on the N2
.
He also saw the Fidelity truck lying on its side off the road and
near it the BMW mentioned earlier
.
Whilst still prone in his
vehicle
,
Msweli heard the sound of a generator which emanated
from the direction of the Dyna
,
although he only saw the
vehicle itself sometime later
.
When he eventually got out of
his vehicle
,
he encountered other motorists who had apparently
approached the scene of crime from the Empangeni side and who were
also forced
to stop
.
The circumstances in
which Msweli was deprived of his vehicle’s ignition keys
although patently intended to immobilise the
vehicle
,
constitutes robbery
.
All the elements of that crime are
present
.
Whether his being forced
to prostrate himself in his vehicle amounts to kidnapping him
,
is another matter
.
The crime of kidnapping
,
in general
terms
,
is constituted by the unlawful and intentional
deprivation of the complainant’s freedom of movement
.
Although
,
again generally speaking
,
the gunmen acted
unlawfully by instructing Msweli at gunpoint to hand over the
vehicle’s ignition keys and to lie down in
it
,
I doubt
that the requisite intent to deprive him of his freedom of movement
on the part of his assailants was present
.
The action of
Msweli’s protagonists by seizing his keys and instructing him
to lie down in his vehicle is consonant with
an intention to
immobilise the vehicle and warning Msweli to stay out of it and not
to look or interfere with the robbery which
was under way
.
At
the end of the day we entertain some doubt that Msweli was criminally
kidnapped and hold that the offence charged under count
16 was not
proved
.
Count 17
relates to the alleged kidnapping of Mkhize
,
who was Msweli’s
passenger in the Corsa vehicle
,
when they were confronted by
the two armed assailants and the vehicle keys were forcibly taken
.
Mkhize did not testify and the only reference to his presence in the
vehicle came from Msweli and then only in passing
.
There is no
indication anywhere in the evidence that could possibly support a
charge of kidnapping involving Mkhize and we hold
that the charge
fails
.
HI-JACKING OF
MASANGO’S MOTOR VEHICLE,
ATTEMPTED MURDER INVOLVING HIM
AND THE KIDNAPPING OF HIS DAUGHTER NOTHILE – COUNTS 18,
19
AND 20
One Masango and his
daughter worked for Bay Brick
,
Empangeni
.
During the
early evening of 2 October 2006 they were on their way home in
Masango’s double cab Ford Ranger travelling north
on the N2
,
when they came across traffic ahead of them which had come to a stop
.
Masango joined the line of stationary vehicles
,
believing that
the hold
-
up was due to an accident which had happened ahead
.
In fact the traffic was
brought to a stop on both sides of the scene of robbery by the
perpetrators thereof
.
It appears that most of the road users
believed that the interruption of the traffic flow was due to an
accident
.
In fact
,
Inspector Herbst
,
who was a
member of the Empangeni Flying Squad on patrol
,
was informed
that a motor vehicle accident had occurred on the N2 and it later
transpired that in reality it was a cash
-
in
-
transit
robbery which took place at Penicuik
.
When Masango was forced
to stop it was about 18h45 according to his estimate
.
His
daughter
,
Nothile
,
put the time as“going on to
7pm”
.
One of the stationary motor vehicles in front of
Masango pulled out of the queue and made a U
-
turn
.
When
it came next to him the driver spoke to Masango and he recognised his
neighbour
,
who informed him that there was no way “through
there” and suggested that they turn around to look for a“short

cut”
.
When his neighbour had driven off
,
Masango
too turned about and headed back in the direction of Empangeni
.
Ahead of him he saw the tail
-
lights of a motor vehicle turn to
the right into a gravel road which led into the plantation
.
Believing that that was his neighbour’s motor vehicle
,
Masango followed suit
.
As he drove onto the
gravel road
,
he noticed a number of motor vehicles facing the
same direction with their doors open and their hazard lights on
.
He stopped and his daughter told him that there was blood on the rear
of the nearest bakkie
.
Believing that he had stumbled upon a
crime scene
,
Masango backed towards the N2
.
As he was
about to enter upon the tar
,
he had to stop for approaching
traffic on the N2
.
At that point his daughter drew his
attention to two men who appeared in front of his vehicle approaching
with rifles pointing
at him
.
His first impression was that
they were policemen as they had typical reflective vests on
.
He
got out of his vehicle with his arms raised above his head
.
His daughter remained inside
.
The armed men instructed Masango
to leave and he fled
,
at times on hands and knees because he
heard what he thought were shots
,
which he believed was fired
at him
.
Masango’s path of flight was parallel to the N2
heading for the safety of the line of stationary vehicles which he
had left
earlier
.
At this point I move away
from the narrative of Masango’s evidence and turn to that of
his daughter
,
Nothile
,
which corresponded with his up
to that point
.
She said that when her father got out of the
vehicle she locked its doors from the inside
.
That caused the
assailants to smash the left front passenger window
.
Nothile
then unlocked the door
.
They pulled her out of the vehicle but
one of them suggested that they take her along
.
As a result
they pushed her into the back seat and drove off
.
There were
two assailants in the cab and a substantial number of them in the bin
of the motor vehicle
.
She estimated that number of men to be
between 10 and 12
.
The activity associated with the forcible
taking over of Masango’s motor vehicle corresponds with the
evidence of what the
witness
,
Msweli
,
saw and described
at the entrance into the plantation road into which the Nissan bakkie
had turned
.
Indeed
,
a white Nissan was found abandoned
together with two other vehicles in the plantation a short distance
into the gravel road in
question
.
Nothile testified that the
assailants conveyed her in the direction of Empangeni but turned off
to Nseleni
,
some 8 kilometres from the Penicuik scene of crime
in her estimate
.
After a short distance
they let her out of the vehicle from where she made her way to a
nearby homestead
.
Her father’s double cab was abandoned
within sight of that house
.
Returning to Masango’s
continued account of the events which befell him – he reached
the apparent safety of the line
of waiting motor vehicles and there
came across a police bakkie with two policemen in it
.
He told
them what had happened and they turned their vehicle about and
departed
,
saying they were going to assist
.
He never
saw or heard from them again
.
Proceeding on from there Masango
encountered a “Venture” vehicle full of policemen and a
policewoman
.
When he approached them the police informed him
that an armed robbery was in progress
,
that it was dangerous
and said they were afraid as the robbers were heavily armed! Masango
eventually was assisted by a security
guard who took him to the
Kwambonambi Police Station
.
He managed to contact his daughter
on her cellphone
,
whoinformed him that she was safe and
unharmed and that his double cab had been left by the hi
-
jackers
nearby
.
Thus it came to pass that
Masango was re
-
united with his daughter and his double cab
,
also unharmed but for the broken window
.
Applying the
prerequisites of the crimes alleged in counts 18
,
19 and 20
,
we have no hesitation in holding the hi
-
jacking of Masango’s
vehicle and the kidnapping of his daughter had been proved beyond all
reasonable doubt
.
However
,
the identity of the
perpetrators and their liability remains to be dealt with
.
We are satisfied however
that the evidence regarding the attempted murder involving Masango
fell far short of proof of the commission
of such an offence
.
THE MURDER OF SECURITY
GUARD GUMEDE – COUNT 21:
This charge arises from
the death of one Gumede
,
who
,
during the early evening
of 2 October 2006
,
was shot to death at the closing stages of
the abortive attempt to rob the Dyna at Penicuik
.
Although the
testimony of the witnesses Ntombela and Nkabinde was somewhat
disjointed
,
they appeared to be honest and reliable witnesses
and their account of the facts was not effectually challenged and
certainly not
countervailed
.
What follows is what we believe
to be an accurate summary of what transpired
.
Gumede (the deceased) was
a security guard in the employ of Maxim Security operating from
Kwambonambi
.
On the day in question (2 October 2006) the
deceased was on duty at the sawmill guarding a heavy duty machine
used in the timber
industry
.
At about 18h15 to 18h20 two other
guards were dispatched to fetch the deceased
,
whose shift had
ended
.
They left in a bakkie driven by Ntombela
,
accompanied by Oscar Nkabinde
.
They travelled from Kwambonambi
which lies to the south of Penicuik
,
on the N2 to Penicuik and
turned onto the eastern leg of the gravel road described earlier in
dealing with the evidence of Msweli
and the two Masangos
.
Just
as their vehicle left the tar surface onto the gravel
,
they
came across a white Combi with what appeared to be police
registration plates
,
but with no police markings
.
The
driver of the Combi cautioned Ntombela not to drive about in that
area
,
a peculiar admonishment
,
considering that they
were obviously security guards in a security vehicle
.
This was
at dusk and at about 18h15 to 18h20
.
They continued driving
and encountered another vehicle on the gravel road – this time
a Telkom Colt bakkie with the Telkom
emblem on its side
.
The
driver was outside the vehicle apparently busy with his cellphone
.
Having picked up the
deceased
,
Ntombela returned along the same route
,
again
passing the two vehicles
.
Ntombela had decided not to use the
N2
,
but instead crossed over it onto the gravel road leading
west
,
also referred to earlier
.
They had just crossed
over the N2 when the deceased asked Ntombela to turn around and go
back to the equipment he had been guarding
,
as he had
forgotten his two
-
way radio there
.
Ntombela complied
.
They went back the same route
,
collected the radio and
returned the same way
.
On both occasions they passed the Combi
and the Telkom vehicles
.
On their return trip they reached the
N2 but had to stop before crossing over it
,
as there were
fast
-
approaching vehicles with their indicator lights on
,
signifying a turn to the right
,
which would place them on the
gravel road west of the N2
,
which Ntombela was intent upon
taking to Kwambonambi
.
At that stage he observed that the Combi
with the police registration on it had moved on to the N2
,
effectually blocking off the traffic from the south
.
The
Telkom Colt was also in the vicinity
.
When the last of the
three approaching vehicles had turned into the gravel road
,
Ntombela followed them
.
He drove over the N2 and entered the
gravel road
.
They had just done so
when they found their way blocked by the three vehicles that preceded
them
.
The stationary vehicles’ doors were open and the
occupants were outside
.
There were many and they were armed
with rifles and immediately opened fire on the security vehicle
.
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 the occupants
.
On the scene of the shooting the
deceased had bled profusely in the back of the bakkie and the ground
next to it before he died
,
which explained why Nothile Masango
was able to discern it immediately upon seeing the back of the
vehicle
.
Ntombela managed to flee into the plantation
,
whilst Nkabinde
,
who was with the injured deceased
,
took shelter behind the security vehicle
.
When the shooting
was over he tried to assist the deceased but to no avail
.
Ntombela at that stage
observed the bogus police Combi and the Telkom Colt leaving at high
speed
,
fleeing to the south on the N2
.
Policemen later
arrived on the scene where the deceased was shot
.
While they
were there
,
the headlights of other vehicles suddenly entered
the dirt road on which they were
.
Nkabinde and the police with
him fled into the plantation
.
It transpired that the arriving
motor vehicles were driven by the Flying Squad
,
who had been
called to the scene
.
An autopsy subsequently
performed on the body of the deceased confirmed that the cause of his
death was a gunshot wound
.
As in the case of Biyela
,
the policeman at Charters
,
the barrage of rifle fire directed
at the security guards was not fired
in terrorem
.
The direction
,
position of the bullet damage on the vehicle
,
coupled with Nkabinde’s evidence
,
leaves no room for any
reasonable doubt as to the intention of the assailants
.
They
shot to kill
.
As in the case of Biyela at Charters
,
the
security officers at Penicuik were obviously perceived to pose a
threat to the robbers
.
The shooting at Biyela and the security
guards are in sharp contrast to the other encounters between
accidental bystanders and
the robbers at
,
for example
,
Penicuik
.
The Masangos and Msweli
and his passenger were not summarily fired upon by the robbers
,
who confronted them
.
So too the enfilade of gunfire from the
robbers preparatory to robbing the Fidelity vehicles at Charters and
Penicuik
.
The many shots fired there were clearly
in
terrorem
and not directly intended to kill the occupants of the
Hi
-
Ace
.
We are accordingly
satisfied that the State has succeeded in proving beyond all
reasonable doubt that Gumede had been murdered by
persons who were
part of the attempted robbery at Penicuik
.
THE ATTEMPTED MURDER
OF SECURITY GUARDS NKABINDE AND NTOMBELA – COUNTS 22 AND 23:
These counts arise from
the barrage of rifle fire directed at the Maxim security vehicle in
which the two guards Nkabinde and Ntombela
,
as well as the
deceased
,
Gumede
,
were occupants
.
As found in
the case of Gumede
,
dealt with above
,
the fire directed
at the vehicle was done with the intent to kill and consequently the
State has succeeded in proving beyond all
reasonable doubt that the
perpetrators of the attempted robbery at Penicuik attempted to murder
both Nkabinde and Ntombela
.
CONCLUSION
On a conspectus of the
evidence led by the Prosecution
,
as summarised
,
and
correlated with the Indictment thusfar
,
we conclude that the
State has succeeded in proving beyond reasonable doubt that
,
save for those charges in the counts singled out earlier
,
the
commission of the individual crimes
,
which form the
subject
-
matter of the charges dealt with relating to the
primary and secondary offences at Charters and Penicuik – in
the sense that
the pre
-
requisite
actus reus
or criminal
conduct which constitutes each relevant offence
,
has been
proved
.
What remains to be considered is
,
as mentioned
,
the identity and criminal liability of the perpetrators of those
offences
.
That is what we turn to
in the next phase of this Judgment
.
THE IDENTITY OF THE
PERPETRATORS
As pointed out earlier
,
the evidence relied upon by the State to prove that the accused were
the perpetrators of the crimes found to have been committed
as
analysed and collated in the preceding phase of the Judgment
,
is entirely circumstantial
.
No so
-
called direct
evidence was placed before us identifying or implicating any of the
accused as a perpetrator in any particular offence
.
Direct
,
as opposed
to circumstantial evidence
,
is evidence which a person gives
relating to what he perceived through his senses
,
the accused
person did relating to the crime charged to him
.
In that case
the witness relates what he saw
,
heard and felt the accused
person do
,
as one would expect
,
for example
,
in
the testimony of the complainant in a rape case
.
I have had
occasion to entertain evidence of a complainant
,
who claimed
that
,
apart from hearing
,
seeing and feeling the
accused
,
she smelled him
.
I confess I have yet to hear
evidence where the witness claims to have tasted the accused
.
On the other hand
,
circumstantial
,
as opposed to direct evidence
,
is
evidence of the surrounding facts from which a Court may
,
within certain parameters
,
infer the guilt of the accused
person in respect of the offence charged to him
.
The examples used by the
Roman Dutch writers
,
whose writings constitute the fount of
our Common Law
,
graphically demonstrate the difference between
direct evidence and circumstantial evidence
.
Somewhat
liberally paraphrased it amounts to this
:-
In a murder case a
witness would testify that he saw the accused run the unarmed
deceased through with a sword withdraw the sword
,
now stained
with blood
,
and wipe the blade on the clothes of his victim
for good measure
.
That is direct evidence of murder
.
Where
,
however
,
the witness testified that he stood
outside the only door of a room and heard a heated argument inside
.
He identified the voices of the deceased and the accused
,
both
raised in anger
.
He heard the deceased scream and immediately
after
,
the accused emerged with a sword in his hand dripping
blood
.
The deceased staggers out clutching his blood
-
covered
chest
.
He collapsed and died
.
That constitutes
circumstantial evidence
.
The witness did not see
the accused stab the deceased
,
but that the accused did so
,
may be inferred from the circumstances described by the witness
.
The parameters within
which circumstantial evidence is applied and evaluated
,
will
come up for consideration later
.
SUSPECT MOTOR VEHICLES
The first touchstone in
the chain of circumstantial evidence arose at about 4am on 2 October
2006
,
when a pivotal witness in the State’s case
encountered four “suspicious looking” motor vehicles
driving towards
Empangeni on the provincial road R34
.
Sithole
was a tactical support officer employed by Fidelity at its base
office at Richards Bay
.
He lived at Eshowe and travelled daily
from home to work and back in an unmarked company vehicle
.
On
this day he departed from home at 3
.
30am using the R66
,
and
at Nkwaleni
,
a well
-
known mountain pass
,
he
turned onto the R34 which routes through Empangeni and from there
becomes the John Ross Highway which passes under the National
road
N2
,
known as the John Ross bridge
,
just east of
Empangeni and leads on to Richards Bay
.
Whilst on the R34 in the
vicinity of a place called Jabulani
,
some 25 kilometres from
Nkwaleni
,
he came across a 7
-
series BMW
,
described by the witness as the “old model”
,
greyish in colour
,
bearing a Gauteng registration and which
was travelling in the same direction as he
.
He passed it and
found himself behind a white Nissan bakkie
.
His impression was
that the BMW and the Nissan were travelling in tandem
.
As will
appear later
,
the relevant area is close to and within the
cellphone reception boundaries of the Horseshoe Sugar Estate
cellphone tower
.
His suspicions were
aroused because the occupants were only adult males – eight of
them – together with the fact that
three weeks earlier a
cash
-
in
-
transit heist involving a Fidelity vehicle
occurred in that area
,
in which a similar type of BMW was used
in capsizing the Fidelity vehicle transporting the cash
.
We
have the impression that Sithole was alert to anything out of the
ordinary and naturally suspicious
,
given his job description
.
It was his function
,
inter alia
,
to plan the
routes to be taken by the Fidelity vehicles conveying cash and was
required to do so with the safety of the crew and
the security of the
cash
-
in
-
transit in mind
.
Whatever the cause
,
Sithole recorded the registration number of the Nissan on a piece of
paper and later transferred it to his diary as NRB 32980
.
He
did not record the number of the BMW
,
as he had passed it
before his suspicions were aroused
.
About one kilometre on
Sithole caught up with two further motor vehicles apparently
travelling together – a white Mercedes
Benz C class and another
BMW similar in type
,
appearance and colour as the one first
encountered
.
Both had Gauteng registration numbers and between
the two vehicles carried six adult male occupants
.
His
suspicions doubly aroused
,
Sithole recorded the registration
numbers of both vehicles
;
the Mercedes Benz as RZF 712 GP and
the second BMW as KRY 631 GP
.
Other distinctive features of
the vehicles were that one of the rear tyres of the Mercedes Benz
intermittently emitted sparks on
the road as if the tyre was worn
down to the steel mesh underlying the rubber outer surface
.
The BMW had a white material cover over the petrol inlet – as
if the protecting flap usually found there was missing or broken
.
Sithole passed those
vehicles also
,
but kept them in sight in his rear
-
view
mirror
.
At the outskirts of Empangeni he pulled into a
side
-
street and allowed the vehicles to pass
.
The four
motor vehicles were now travelling together
,
closely following
each other
.
Sithole turned in behind the vehicles and followed
the cavalcade into Empangeni
.
At the first robot
-
controlled
intersection the leading three vehicles in front passed through
,
but the fourth
,
a BMW
,
pulled up as the traffic light
had turned red
.
When the light changed the BMW sped away until
it caught up with the other vehicles
.
In the meantime Sithole
had phoned the South African Police Control Centre
,
Empangeni
and furnished the lady
,
who took his call
,
with details
of the motor vehicles
.
She responded that none of the
registration numbers were those of motor vehicles that had been
reported stolen
,
but that one of the registration numbers
furnished to her by Sithole belonged on a Fiat Uno vehicle
.
That vehicle cannot
,
by any stretch of imagination
,
be
confused with a BMW
,
a Mercedes Benz or a Nissan bakkie and
Sithole’s suspicions were confirmed
.
In the meantime also
,
Sithole had informed a colleague at the Richards Bay Fidelity base of
his observations and requested him to contact the police
station at
Empangeni as the R34 passes right in front of it
,
and to
convey all the information to them
.
The idea was to cause the
police to stop the vehicles as they passed in front of the police
station
.
Nothing came of that however
.
Sithole was
informed by his colleague that no one at the Police Station answered
the telephone
.
Sithole continued to
follow the motorcade and at an intersection further on
,
the
hindmost BMW was forced again to stop at the red robot
,
while
the others drove on
.
Sithole stopped behind that vehicle and
noticed a back
-
seat passenger close the rear window’s
blind
.
Once more the BMW sped away and caught up with the
suspect convoy
.
Sithole followed at an appropriate distance
.
Thus the convoy continued through Empangeni onto the John Ross
highway towards Richards Bay
,
followed by Sithole
.
On
the way Sithole tried to phone a certain Kevin Govender
,
a
Fidelity “investigator” but received no answer
.
That
was at plus
-
minus 04:25
,
he estimated
.
In this way Sithole
followed the convoy through Richards Bay to Meerensee
,
a
suburb
,
and eventually to Mzingazi
,
another suburb of
Richards Bay
,
with Sithole
,
still following
,
exercising fitting circumspection
.
Thus he discovered that the
vehicles had all turned into a homestead which turned out to be that
of accused 24
.
The vehicles in question were parked in the
yard of the premises
.
Sithole withdrew and phoned the Richards
Bay Police Station
.
He explained what had transpired
,
but was told that they were changing shifts and could not send
assistance
.
Sithole gave up and went to his office
.
From there he once again
contacted the Richards Bay Police Station and explained the reasons
for the call
.
He was told that the Police had only two members
available to assist
.
He agreed a place to meet with those and
did so
.
Sithole explained everything to the two policemen
.
When Sithole informed the police members of the number of persons in
the suspect vehicles
,
they refused to go to accused 24’s
house
,
saying that they were afraid as there were “a lot
of people there”
.
The police left saying that they would
“fetch back
-
up”
.
Needless to say
,
nothing came of that and Sithole returned to his base
.
It was
now about 07:30
.
At about 08:30 Sithole
,
from his workplace
,
once again sought help from the Company
Investigator
,
Govender
.
The outcome of that
communication was that
,
through Govender
,
Sithole got
in touch with a certain Inspector Fourie
,
said to be stationed
at Richards Bay Police Station
.
He told the inspector what he
knew
.
Fourie
,
in turn
,
informed Sithole that the
police had information that a Fidelity vehicle might be robbed at the
Richards Bay Post Office and that
they were on the look
-
out
for motor vehicles similar to those described by Sithole to them
,
adding that he believedhe knew the homestead that Sithole referred
to
.
On that note Sithole
returned to work at the Fidelity base
.
However later that day
,
not being satisfied with the way things were turning out
,
Sithole drove to Empangeni and from there along the R34 to the area
where a Fidelity vehicle had been robbed previously
.
He had
just passed through Empangeni on his way
,
when he received a
report of the robbery at Penicuik on the N2
.
He hastened
there
,
arriving at the scene of crime at approximately
19:15
.
There he observed the capsized Dyna and the scene as
described earlier
.
The BMW with which the
Dyna had manifestly been rammed
,
he recognised as one of the
motor vehicles he had encountered on the R34 during the early hours
of that morning
.
Sithole’s identification of the
relevant BMW is unquestionable and includes a reference the white
cover over the petrol inlet
.
He also discovered that the
registration plates of the vehicle had been changed and found a
registration plate
,
the number of which he had recorded
,
on the rear seat inside the vehicle
.
While still at the
robbery scene Sithole was informed of the abandoned motor vehicles at
the murder scene on the gravel road in
the plantation referred to
earlier
.
When he arrived there he saw the the Nissan bakkie
,
which he had encountered on the R34
.
Here too his
identification of the vehicle was indisputable
,
the Nissan
bakkie still bore the registration numbers which he had recorded
.
At that point he also observed the blood on the ground where the
deceased had died
.
Whilst still at the
Penicuik scene of crime
,
Sithole received a report of the
robbery at Charters and proceeded there
.
Sithole arrived at
Charters at about 19:25
.
It would appear that it took him 10 to
15 minutes to drive to Charters from Penicuik
.
He was met by the sight
already described in this Judgment
.
There he also identified
the white C Class Mercedes Benz
,
stationary behind the police
bakkie which
,
according to the evidence
,
was where the
exchange of gunshots occurred between Constable Biyela and the
robbers
.
He identified the Mercedes Benz as the one he had
encountered on the R37 as part of the convoy
.
It had the same
worn right
-
rear tyre
,
which caused the sparks on the
road surface that he had observed
.
The steel mesh was indeed
exposed
.
The registration plate had been changed
,
but
upon inspection
,
it was found that the “new”
registration plate had been adheased over the number plate which he
had observed and recorded
.
The Fidelity Inspector
,
Govender
,
arrived at Charters also
.
He introduced
Sithole to Captain Mncube of the South African Police
.
Sithole
related to him all he knew of up to that stage
.
Captain Mncube
and Govender requested him to take them to the house at Mzingazi
where the suspect vehicles had gone
.
Sithole duly took them
there
.
Having been shown the house in question Captain Mncube
and Govender dropped Sithole at an arranged spot at Meerensee and
returned
to the house again
.
The time then was about
22:30
.
Sithole returned to the Fidelity office to await
reports on any further development and in order to arrange for
breakdown vehicles
to remove the disabled Fidelity vehicles from the
respective scenes of crime
.
Well after midnight
,
during
the early hours of 3 October 2006
,
Sithole was informed of the
arrest of the suspects at the tollgate at Mvoti Plaza on the N2 at
Stanger
.
Govender
,
who was at the scene of arrest
requested Sithole to come there and collect three “smart”
boxes which could only be
opened with dedicated electronic equipment
at the Fidelity base at Richards Bay
.
Accompanied by a
colleague
,
Sithole in due course collected the boxes and
returned to his offices at Richards Bay
.
There the money from
the boxes was counted and found to be in the sum of R136 170
-
00
.
The cash was locked in a safe at the base
,
but could not be
exhibited to the Court as it was subsequently stolen from there
.
PURSUIT AND ARREST
Govender’s evidence
echoes that of Sithole up to the point where Sithole had shown them
accused number 24’s house at
Mzingazi
.
Govender was in a
Corsa bakkie with Captain Mncube as passenger
.
On approach to
the house in question
,
a dark BMW came from the front from the
direction of accused 24’s homestead
.
It had bluish/white
(bixenon) headlights
.
The road was too narrow and Govender
turned off to allow the approaching BMW to pass
.
After that
Govender continued towards the homestead
.
Before reaching the
driveway to the premises
,
a white Toyota Hi
-
Ace Combi
came out of it and turned into the road in the same direction as
Govender was facing
.
It was raining at the time
.
As
Govender drove by slowly he observed motor vehicles in the yard
,
apparently readying to leave
.
A dark coloured BMW was reversing
out of the yard and yielded for Govender to pass and a blue Hyundai
sedan parked in the yard
,
appeared to be idling
.
Govender also observed a red Toyota Hi
-
Ace Combi parked
further into the yard
.
He testified further that a large
number of black males stood around the vehicles
.
He estimated
that there were between twenty to thirty men
.
There were three men at
the gate of the premises
,
one of whom appeared to be observing
the Corsa closely
.
One of the men near the gate was
distinctive in appearance
.
He sported dreadlocks and was
wearing jeans
.
This was about 23:00
.
During this time Mncube
was “frantically” trying to reach the police emergency
call centre at telephone number 10111
,
but received no answer
.
Contemporaneously Govender kept the white Combi in sight
.
The
white Combi stopped at a T
-
junction and Govender followed
suit
.
When that vehicle turned to the left
,
Govender
followed it
.
By then he and Captain Mncube had noticed that
the Combi was crammed with adult males
.
Though he kept on
trying
,
Mncube could not get the police to answer their
phones
.
Mncube succeeded in alerting the “flying squad”
,
then on patrol
,
and arranged to meet them at a garage in
Empangeni
,
as the white Combi they followed appeared to be
going that way on the John Ross highway
.
At a point on that
road shortly before the N2
,
which crosses over iton the John
Ross bridge
,
and
,
ostensibly to avoid alerting those in
the Combi
,
Govender overtook it but kept sight of the vehicle
in his rear
-
view mirror
.
He saw the Combi turn towards
the south onto the N2 – in the direction of Durban
.
Govender proceeded to
meet up with the flying squad at the Caltex garage at Empangeni
,
plus
-
minus 2 kilometres from the N2
.
At the garage a
flying squad vehicle arrived
,
shortly thereafter followed by
another flying squad vehicle
.
The situation was briefly
explained to the police manning the squad cars
.
Captain Mncube
transferred to one of the squad cars and a high speed pursuit
followed
.
The squad cars turned onto the N2 south
,
being the direction the white Combi had taken
.
Eventually on
the N2 he contacted the Durban Police and requested their help
.
Govender followed with his bakkie
,
keeping in constant touch
with Captain Mncube
,
both using cellphones
.
At the Mtunzini Tollgate
,
south of Empangeni on the N2
,
they were informed that the
white Combi had already passed through
.
They continued and at
Zinkwazi
,
just south of the Tugela river
,
they caught
up with the white Combi they were pursuing and from that point
followed behind it as it continued south on the N2
.
It was
decided that the best place to stop the Combi would be at the Mvoti
Toll Plaza just south of Stanger
.
At the tollgate only one
lane was in use and a petrol tanker
,
which was about to pass
through
,
was instructed to remain where it was
,
thus
effectually barring the gate
.
The Combi came to a stop
behind the tanker
.
The police vehicles activated their sirens
and police lights and stopped right behind the Combi
,
thereby
efficiently corralling it
.
The police
,
armed with
assault rifles and handguns surrounded the cornered vehicle
.
The occupants were ordered to get out one at a time with their hands
raised
.
A minute or more passed without any response in what
Govender described as a “stand
-
off of 2 to 3 minutes”
.
Then the driver of the white Combi
,
accused number 24
,
emerged with his hands raised
.
He was followed by 13 others
who stepped from that vehicle one by one with arms aloft
.
As
the occupants came out they were first searched “patted down”
for any hidden firearms and were then made to lie
prone on the ground
where their hands were cuffed behind their backs
.
More police
vehicles arrived on the scene
.
What descriptively
follows is a composite of the evidence of a considerable number of
chiefly police witnesses
,
each testifying according to his own
perspective in intense and dynamic circumstances
,
rendered
even more difficult by the pouring rain
,
whichintermittently
inundated the scene of arrest
.
What we find heartening
,
in the light of the inert incompetence of the police in response to
the desperately needed help by Sithole to begin with and later
Mncube
and Govender
,
as recounted earlier
,
was the
thoroughness and commendable competence with which the arrests
,
search and collection and recording of exhibits carried out on the
scene of arrest and
,
later
,
at the offices of the
Organised Crime Unit at Cato Manor
,
Durban
.
The
professionalism displayed at the scene of arrest is of the highest
order
,
more so
,
given the extremely difficult
circumstances in which the police had to work
.
I now turn to the
evidence of Captain Mncube
,
an officer in the Organised Crime
Unit
,
Richards Bay
.
As mentioned earlier
,
his
testimony parallels that of Govender
.
His role began when
,
within a relatively brief period of time he received consecutive
reports of the Penicuik and Charters robberies respectively
.
He went to Penicuik first
and there came upon the scene detailed earlier in the Judgment
.
There he was joined by Govender and together they proceeded to the
Charters scene of crime
.
The Forensic Field examiners were
already busy mapping the scene
.
He confirmed that money bags
,
some empty and some with money in it were recovered in and around the
Fidelity Hi
-
Ace
,
indicative of the haste with which the
robbery ended
,
as remarked upon earlier
.
Govender
introduced Sithole to him
.
The latter recounted his encounter
with the suspicious looking motor vehicles on the R34
,
one of
which was apparently abandoned at the Charters scene of crime
,
which he pointed out to Captain Mncube
,
concluding with
Sithole’s shadowing and observing the vehicles in question
,
ending up at accused 24’s homestead at Mzingazi
.
It was arranged that
Sithole would point out the house to them
.
From this point on
his testimony mirrored that of Govender
,
adding that he
recorded the registration of the BMW which was in the proximity of
the gate of accused 24’s house
.
As testified to by
Govender
,
Captain Mncube confirmed the arranged meeting with
the flying squad vehicles at the garage at Empangeni
.
Captain
Mncube joined the vehicle driven by Inspector Herbst and the three
vehicles departed in pursuit of the white Combi
.
They caught
up with the Combi in the Mandini area on the N2 and thereafter
followed it to the Mvoti Tollgate
,
where they had decided
would be the best place to stop the pursued vehicle
.
At the
Tollgate Inspector Herbst used a loudspeaker to order the Combi to
stop
.
The Combi came to a halt
.
Captain Mncube observed
the occupants seated in the back discarding money back over the seat
and onto the floor of the vehicle
.
Indeed
,
later some
R80 000
-
00 in R100 notes were found on the floor of the Combi
after the occupants were evacuated from the vehicle
.
Captain
Mncube claimed that he identified accused number 3 as one of the
persons
,
who discarded money in that fashion
.
However
,
given the circumstances in which the purported identification of
accused number 3 took place
,
which were hardly conducive to a
reliable snap identification
,
no reliance can be placed
thereon
.
Captain Mncube confirms
Govender’s evidence relating to the securing of the occupants
of the Combi face down on the ground
.
Captain Mncube assumed
control of the scene of arrest
.
Speaking in Zulu
,
he
informed the erstwhile occupants of the Combi that they were under
arrest for the robberies which occurred in the Mtubatuba
area and
thereafter explained their constitutional rights to them
.
At about this time
members of the Dog Unit operating from Durban arrived on the scene
,
having been summoned to assist by Captain Mncube while still under
way to the Mvoti Toll Plaza
.
Captain Mncube instructed the
Flying Squad and Dog Unit members to be on the lookout for the BMW
which he and Govender had encountered
at accused 24’s
homestead
,
the registration number whereof he had recorded
.
The next motor vehicle
,
a blue Hyundai sedan
,
to arrive
on the scene
,
was stopped by those members
.
They called
Captain Mncube to the vehicle and pointed out to him 3 fidelity
“smart boxes” in the rear
,
which Govender
identified as Fidelity property
.
Captain Mncube also
recognized the Hyundai as one of the motor vehicles he had seen in
the premises of accused 24’s homestead
when he and Govender
drove by
,
as mentioned before
.
Accused 14 was the
driver of the Hyundai and accused 19 the only passenger
.
He
recognized accused 19 because of his “dreadlocks” and
dress
,
which he had observed in the vicinity of the gate of
accused 24’s house when they drove past it
.
On the floor
of the vehicle the Rossi
.
38 revolver
,
which had been
robbed from the crew of the Hi
-
Ace at Charters
,
was
discovered and in the cubbyhole in front of the passenger seat an
ABSA money bag with money in it
.
The third motor vehicle to be
stopped and detained on the scene of arrest was a red Toyota Hi
-
Ace
Combi driven by accused number 12
.
There were 4 passengers in
it – accused 5
,
7
,
16 and 22
.
A search of
the interior revealed “money bags” and “money all
over the floor”
.
When counted later
,
it was found
that the money totalled the sum of R30 296
-
00
.
The BMW
,
which
Captain Mncube had been expecting
,
was the final motor vehicle
to arrive
.
Accused 8 was the driver and accused 1 and 20 the
passengers
.
The BMW was searched and accused 1 had in his
possession a Fidelity drop
-
safe bag
,
which was
subsequently properly identified as having been a bag utilized by
Baobab Service Station and which was in the Fidelity
Hi
-
Ace
when it was robbed at Charters
.
In the cubbyhole a 9mm pistol
and license thereto was found
,
together with an identity
document
,
later established as being the property of accused
14
.
After the BMW was stopped and while its occupants were
being arrested
,
the police
,
who were awaiting the
possible arrival of further vehicles associated with those in arrest
,
observed a VW Golf vehicle on approach to the scene of arrest
.
It came to an abrupt stop
,
turned around and sped away at high
speed
.
It disappeared out of sight before the police could
mount a chase
.
Govender testified that he saw the lights of
that vehicle in the process of turning and leaving the scene
.
In all 24 of the 26
accused were apprehended and arrested at the Mvoti Toll Plaza
.
As they were taken from the various motor vehicles
,
they were
superficially searched for weapons
,
as were the vehicles
.
This was followed by a full search of each of the accused and the
respective vehicles in which they were
.
Thattook place later
.
However
,
during the “pat down” search large
quantities of money were found in the clothes of some of the accused
,
but left in place
,
awaiting the arrival and tasking of the
investigation team from the Organised Crime Unit
,
Durban
,
who were on the way
.
After the arrival of
sufficient numbers of the investigation team
,
a proper and
methodical search of the erstwhile occupants and their vehicles
followed
.
Whatever items the search of the persons of the
accused yielded
,
were described and recorded on the scene by
,
inter alia
,
Inspectors Mostert and de Bruyn
,
Captain
van Tonder
,
Captain Mncube and Inspector Dean
.
Comparison of the relevant notes during the course of
cross
-
examination
,
revealed that they were basically
the same
.
The items found in
possession of each of the accused were placed in a transparent
“exhibit” bag with the name of the
accused on a label
that was part of the material of the bag itself
.
Each exhibit
bag had its own designated serial number
.
Each bag was sealed
and thereafter placed in Inspector de Bruyn’s vehicle
.
All of that took place in the presence of the accused
,
albeit
that they were face down on the ground next to the vehicle which they
had arrived in
.
Likewise
,
except
for the bags with the firearm and angle grinder
,
all items
found in each of the captured motor vehicles were described and
recorded and placed in exhibit bags relating to each
particular motor
vehicle
.
These too were placed in Inspector de Bruyn’s
vehicle
.
Upon completion of the
searches and processing of the exhibits found
,
the accused and
the motor vehicles in which they had travelled
,
together with
the police vehicles were driven in convoy to the Cato Manor Offices
of the Organised Crime Unit
.
By then it was already daylight
on 3 October 2006
.
On 4 October 2006 Captain
Mncube
,
Inspector Ntombela and others were dispatched to
conduct a search of accused 24’s homestead at Mzingazi
.
In a bucket in one of the toilets in the house they discovered a
substantial number of empty stop loss bags
,
P
-
bags
,
First National Bank (FNB) deposit slips and a “bulk receipt”
from the same bank
.
In all some 51 separate items of the
nature described
,
were thus found
.
As mentioned
,
subject
to a few exceptions
,
during the trial
,
no piece of
evidence however small or formal in nature was admitted or allowed
onto the record as common cause between the accused
and the State
.
As a consequence
,
every receipt
,
deposit slip
,
P
-
bag or Stop Loss Bag found in the house of accused 24
,
was proved in evidence by employees of the Fidelity client to which
the items in question belonged
.
It was accordingly
labouriouslyproved that the mentioned bags and money in it and the
deposit slips and receipts relating thereto
had been handed to
Fidelity and were in the Fidelity Hi
-
Ace
,
when it was
capsized and robbed at Charters
.
Those items were exhibited to
the court and inclusively marked SS1 to SS51
.
Also discovered at
accused 24’s house
,
was a bullet
-
proof vest and
an assortment of motor vehicle registration plates
.
The latter
appears significant
;
bearing in mind the number of false
registration plates found at Penicuik and Charters
.
It is common cause that
accused 25 was shot and injured during the early evening of 2 October
2006
.
However
,
the circumstances in which that occurred
is in issue and will be addressed in due course
.
While he was
in the hospital being treated for the gunshot wound
,
he was
duly arrested and charged by the Investigating Officer
,
Lt
-
Colonel
van Rensburg on 5 October 2006
.
On 14 October 2006
accused 26 was arrested by Captain Mncube and Inspector Ntombela at
Ngwelezane near Empangeni
.
During the course of the arrest
accused 26 fled and was pursued by the officers
.
While giving
chase
,
Captain Mncube and Inspector Ntombela became separated
.
After a long chase
,
Inspector Ntombela fired a warning shot
,
calling upon accused 26 to stop
.
The accused did not heed
,
but seemed to tire and then stop
.
Inspector Ntombela kept his
service firearm pointed at accused 26
,
who started advancing
upon him and continued to do so notwithstanding repeated warnings to
stop
.
At that stage a motor vehicle pulled up behind Ntombela
,
which caused him to turn to look behind
.
When he did so
,
accused 26 continued to come at him
.
Ntombela then fired a
shot at the lower body of accused number 26
.
At the same time
the occupant of the vehicle also shot at the accused
.
In this
shooting accused 26 was injured
,
but not seriously
.
Captain Mncube
,
who had by then arrived
,
again formally
arrested accused 26 and explained his Constitutional rights to him
.
As he was handcuffing accused 26 Inspector Ntombela noticed grazes on
the former’s wrists
.
He enquired about those and accused
26 responded by saying that he had paid an “Inyanga” who
promised him that he would
not be arrested “for this particular
case”
.
Thereafter accused 26 was removed to hospital by
ambulance
.
It appears that the motor vehicle
,
which came
up behind Ntombela
,
was driven by another policeman
,
who
happened on the scene and tried to assist
.
Between Ntombela
and the other policeman it was uncertain who shot and injured the
accused
.
THE PHYSICAL EXHIBITS
RECOVERED
Where
,
as here
,
the case sought to be made out against the accused
,
is based
on circumstantial evidence
,
the various items found on the
persons of the accused on arrest and in their vehicles
,
play a
revealing role and
,
in a sense
,
tell their own story
.
Concerning items
recovered from the persons of the accused
,
it would be
appropriate to deal with the groups of accused who were travelling
together in the same vehicle
,
when they were stopped and
arrested
,
followed by what was found in the relevant vehicle
.
The White Combi –
The 14 occupants had the following in their possession:
Accused 24
(the
driver) – 2 cellphones and R4 040
-
00 in cash
.
Accused 9
(the
front seat passenger) – 1 cellphone and R28 640
-
00 in
cash
.
Accused 2
(rear
passenger) – 1 cellphone and R44 300
-
00 in cash and a
drop
-
safe bag which was identified by the witness
,
Mr
Smalman
,
as a Petroport filling station bag handed to the crew
of the Fidelity Hi
-
Ace
,
which was robbed at Charters
shortly thereafter
.
Accused 3
(rear
passenger) – 1 cellphone and R23 550
-
00 in cash
.
Accused 4
(rear
seat passenger) – 2 cellphones and R2 770
-
00 in cash
.
Accused 6
(rear
seat passenger) – 1 cellphone and R7440
-
00 cash
.
Accused 10
(rear
seat passenger) – 1 golf glove and R23 030
-
00 cash
.
Accused 11
(rear
seat passenger) – 1 cellphone
,
one pair of woolen gloves
and R34 450
-
00 cash
.
Accused 13
(rear
seat passenger) – R1 250
-
00 in cash
.
Accused 15
(rear
seat passenger) 1 cellphone
,
a balaclava cap and R3 710
-
00
in cash
.
Accused 17
(rear
seat passenger) – 2 cellphones
,
one pair of gloves and
R22 230
-
00 in cash
.
Accused 18
(rear
seat passenger) – 2 cellphones and R4 350
-
00 in cash
.
Accused 21
(rear
seat passenger) – 1 cellphone and R370
-
00 in cash
.
Accused 23
–
1 cellphone and R3 650
-
00 in cash
.
In the white Combi
itself was found:-
A large black bag with a
heavy petrol driven angle grinder in it
.
A large black bag with 3
automatic assault rifles in it – two AK 47’s and one
LM5
.
2 Pistols with the
serial numbers erased – one found under the driver’s
seat and the other lying loose behind the
driver’s seat on a
type of console
.
5 Single gloves
.
One of those had blood on it
.
A properly performed DNA
comparison test established beyond any doubt that the blood stains
on one glove came from accused 25
,
who by that time was
already in the Prince Mshiyeni Hospital at Durban
.
Another glove
established through DNA comparative tests as belonged to accused 23
.
Apart from the 2 pairs
of gloves found on the persons of accused 11 and 17 respectively
,
4 further pairs of gloves were found loose in the vehicle
.
2 balaclavas
,
one
of which was through DNA tests established to have sweat
,
emanating from accused 25
,
on it
.
A black cap
,
towel and cloth
.
In the rear passenger
area cash in the form of notes was found strewn all over the floor
totalling R79 990
-
00
.
Notably not a single
piece of luggage was found in the vehicle.
The Blue Hyundai –
the two occupants had the following on their persons:
Accused 14
(the
driver) – 1 cellphone and R13 400
-
00 in cash
.
Accused 19
(left
front passenger) – 1 cellphone and in the cubbyhole in the
panel in the front of the seat
,
where he had been sitting
,
an ABSA Bank Arboretum bag containing R28 430
-
00 in notes
,
which the police assumed was his and included it into the exhibit
bag assigned to accused 19 on the scene of arrest
.
On his
person was also found a FNB deposit slip
,
which accompanied
the money handed to Fidelity by the Spar Grocer at Ingwavuma and
which was in the Hi
-
Ace when it was robbed at Charters
.
In the Hyundaiitself
–
3 unopened (and charged)
Fidelity smart boxes with money in them and which had been robbed
from the Hi
-
Ace at Charters
.
On one of the “smart”
boxes
,
the palm
-
print of accused 17 was properly
lifted and proved
,
although accused 17 himself was a
passenger in the white Combi at the time of his arrest
.
About R2 500
-
00
in cash on the floor of the vehicle
.
The
.
38 Rossi
revolver belonging to Fidelity and which was taken during the course
of the robbery in the Hi
-
Ace at Charters
2 pairs of gloves
.
A grey bag with
anti
-
biotics
,
a toothbrush and toothpaste
.
The
toothbrush was shown through DNA tests
,
as being that of
accused 19
.
A shirt
,
jacket
and black cap
,
lying loose in the vehicle
Not a single piece of
luggage was found in the vehicle.
The Red Combi-the 5
occupants had the following on their persons
Accused 12
(the
driver) – R2 530
-
00 in cash
.
3 cellphones
,
one
of which belonged to accused number 7
,
who was in the same
vehicle
.
Accused 5
–
1 cellphone and R23 100
-
00 in cash
.
Accused 7
–
1 cellphone and R42 550
-
00 in cash
.
Accused 16
–
a cellphone and R22 900
-
00 in cash
.
Accused 22
,
also known as “Fono” – a cellphone and R710
-
00
in cash
.
In the red Combiitself
was found
– R30 296
-
00 loose on the floor of the
vehicle – a blanket
,
black hat and a blue beanie
,
together with a toothbrush and toothpaste
.
Again not a single
piece of luggage was found in the vehicle.
The Blue BMW –
The three occupants had the following on their persons:
Accused 1
–
1 cellphone
,
a drop
-
safe bag
,
which eventuated
from the Baobab service station and which was in the Hi
-
Ace
,
when it was robbed at Charters
.
R56 000
-
00 in
cash
.
Accused 8
–
1 cellphone and R21 000
-
00 in cash
.
1 pair of gloves
.
Accused 20
–
1 cellphone and R35 890
-
00 in cash
.
In the Blue BMWitself
was found:
A Standard Bank and
Stop
-
card card with the name of accused 5 on it
,
although accused 5 himself was arrested in the red Combi
.
A pistol licenced to
accused 14
,
together with the firearm licence and accused
14’s Identity book
,
although accused number 14 was
arrested in the blue Hyundai
.
1 black and 1 purple
woollen cap
.
1 pair of gloves
.
Again,
as in
the case of all the other vehicles,
not a single piece of
luggage was found in the BMW.
THE OFFICE OF THE
ORGANISED CRIME UNIT AT CATO MANOR
As mentioned earlier when
the necessary investigation at the scene of arrest at Mvoti Tollgate
Plaza
,
which included the police forensic fieldwork
,
e
.
g
.
looking for fingerprints and taking of
photographs
,
the whole collective of the arrested accused
,
their motor vehicles and exhibits recovered
,
were removed to
the offices of the Organised Crime Unit at Cato Manor
,
Durban
.
There the sealed exhibit
bags were opened in the presence of the accused
,
one at a
time
,
with no particular sequence in mind and the contents
thereof taken out and recorded
.
The money found on the
respective accused
,
as aforementioned
,
were counted and
each accused was requested to sign a so
-
called SAP 299 –
whereby he consented to the money found in his possession
,
as
noted earlier
,
being handed to Fidelity Cash Management
Services
,
represented by the said Govender
,
to be kept
and produced as exhibits
,
if called upon to do so
.
Those forms serve before us as the “Exhibit PP” series
.
Accordingly
,
all
the cash found in possession of the accused at the scene of arrest
,
was dealt with in this way
.
Whilst some of the accused
testified that they were simply told to sign the mentioned forms and
did so
,
without realizing the purport thereof
,
we are
satisfied that each accused signed Exhibit PP applicable to him
,
freely and voluntarily and without being unduly influenced thereto
and with full knowledge of his Constitutional rights and the
import
of their signed consents
.
Throughout these drawn
-
out
proceedings and in testimony
,
the accused have presented as
intelligent and sophisticated and we are satisfied that they knew
exactly what they were doing
.
In this regard it is to be noted
that none of the accused objected to “his money” being
handed to Fidelity
.
In turn
,
the items found in the
respective vehicles
,
i
.
e
.
the white Combi
,
the Hyundai
,
the red Combi and the BMW
,
were taken out
of the exhibit bags in which they were sealed on the scene of arrest
and displayed to the accused and the contents
thereof noted
.
When the import of the
exhibits discovered
,
as aforementioned
,
is considered
,
it is to be borne in mind also that Fidelity Drop
-
cash and
P
-
Bags
,
together with deposit slips
,
etc
.
directly
linked to the Charters robbery
,
were found in the house of
accused 24 at Mzingazi
.
The next step is to
consider the significance of the arrests and recovery of the exhibits
in relation to the two Fidelity robberies
and associated offences
.
Were the four vehicles
in which the accused were travelling,
travelling independently
of each other and without knowledge of the occupants in any given
vehicle of the other vehicles and their
occupants,
as claimed
by all of the accused?
In our view there can be
no doubt that the four vehicles and their occupants were travelling
in concert and collaboratively
,
although not in convoy
.
The accused in the motor
vehicles had some collective destination in mind in Durban or its
vicinity
,
bearing in mind that the three smart boxes in the
Hyundai were armed and had to be opened within a particular period of
time
,
lest an internal explosive device be set off
,
which would stain the money in it
,
rendering it commercially
useless
,
as explained by Govender in his testimony
.
We base our conclusion on
the following
.
The evidence clearly
establishes that the four vehicles in question and all the accused
who travelled in them
,
were gathered at and departed from the
house of accused 24 at Mzingazi
.
Govender saw the vehicles at
the premises and described them
.
Captain Mncube who was with
him recorded the registration number of the BMW and alerted the
police at the Mvoti Tollgate Plaza
to be on the lookout for that
vehicle
.
Govender and Mncube followed the white Combi from
accused 24’s house up to the N2 south and later caught up with
it on
the same road and followed it to the Plaza
.
The
certainty accompanying the identification of the white Combi and the
BMW lends added credence to Captain Mncube’s claim
that the
blue Hyundai and the red Combi were in the premises of accused 24’s
homestead when they drove by and commenced
following the white
Combi
.
In the four vehicles
themselves evidence was found
,
which interlinked the vehicles
and occupants
.
The palm print of accused 17
,
who was
in the white Combi
,
was found on one of the smart boxes in
the blue Hyundai
;
the bank and stop
-
cards belonging to
accused 5
,
who was a passenger in the red Combi
,
was
found in the blue BMW
;
accused 14’s pistol
,
licence and identification book were found in the blue BMW
,
whilst he was in the blue Hyundai when he was arrested
;
apart
from the money
,
other items that were robbed from the Hi
-
Ace
at Charters were found in the white Combi
,
the blue Hyundai
and the BMW
.
Thus accused 1 in the BMW had in his possession
a Fidelity drop
-
safe bag emanating from the Baobab filling
station
;
accused 2 (in the white Combi) had in his possession
a Fidelity drop
-
safe bag emanating from Petroport Filling
Station
;
in addition to the Fidelity “smart”
boxes in the vehicle with them
,
accused 19 (in the Hyundai)
had in his possession a FNB deposit slip emanating from the Spar
grocer at Ingwavuma
.
In the context of the
afore going the angle grinder found in the white Combi assumes some
significance
.
It will be recalled that a sound similar to
that of a motorized angle grinder emanated from the capsized
armoured Fidelity vehicle
at Penicuik
,
whilst the hinges of
the rear door thereof showed very clear signs of scouring consistent
with the use of some sort of cutting
tool
.
In the absence of
a plausible innocent explanation of the presence of the grinder in
the white Combi
,
which was not furnished or suggested
,
everything points to the grinder having been used at the Penicuik
scene of crime
;
three unopened Fidelity smart boxes were
found in the Hyundai
,
with accused 17’s palm print on
one of them
;
accused 25’s glove and balaclava were
found in the white Combi
.
In this regard we are left in no
doubt that accused 25 was shot and injured by Constable Biyela at
the scene of crime at Charters
.
It will be recalled that the
assailant whom Constable Biyela had shot
,
was bundled into a
blue BMW and removed from the scene of the shooting
.
Inspector Xulu found a similar BMW abandoned plus
-
minus 1
kilometre from the Charters scene of crime
.
Blood on and in
the vehicle was properly DNA
-
analysed and compared with a
blood sample obtained from accused 25 and found to match perfectly
.
This
,
however
,
is a matter that will be fully dealt
with
infra
.
Bearing in mind that the arrest of the
accused and the seizure of the vehicles and contents occurred on 2
October 2006
,
the extraordinary number of gloves found on the
persons of some of the accused and in the vehicles in question
,
seems to us to be significant
.
So too the number of black
caps and balaclavas
.
The headgear and gloves would obviously
be very handy for use in a robbery of this nature
.
The gloves
would leave no fingerprints and the headgear makes identification
difficult
.
The money found on the
accused and in the motor vehicles
,
including the smart boxes
totals R661 055
-
00
.
On an overview of the evidence
summarized
supra
,
there can be no doubt but that the
money constituted part of the unlawful proceeds of the robbery of
the Fidelity vehicle at
Charters and
,
save for accused 12
,
was collectively possessed by the 24 accused arrested at the
Tollgate
.
To be sure
,
in the case of accused 12 and 22
in the red Combi
,
each was found in possession of a
relatively small amount of money
.
But
,
there again R30
296
-
00 was found on the floor of the Combi
.
Considering that accused 5
,
7 and 16 in the same vehicle
,
was each possessed of a substantial amount of cash
,
the
inference is irresistible thataccused 22jettisoned the money
discovered on the floor of the red Combi
,
when arrest was
imminent
.
As appears later
,
accused 12 was hired to
provide conveyance only
.
The same reasoning
applies with equal force to accused 4
,
6
,
13
,
15
,
18 and 23 in the white Combi who had modest amounts of
cash on them
,
but with R80 000
-
00 spread
,
in a
sense
,
at their feet all over the floor in the rear of the
vehicle
,
where they were seated
.
It is also to be noted
that the remaining two motor vehicles
,
the Hyundai and the
BMW
,
had
,
save for R2 500
-
00 no apparently
jettisoned money on the floors
,
but each of the accused in
them was laden with cash
.
For reasons to follow accused 24
appears to be in a different position
vis
-
a
vis
his passengers in the white Combi
.
When the journey of the
arrested motor vehicles is backtracked to the point of departure at
the homestead of accused 24
,
the inference is equally
irresistible that the proceeds of the robbery at Charters were
divided in that house
,
particularly bearing in mind that on
the following day
,
the empty drop
-
cash and P
-
bags
and the deposit slips
,
which had been robbed from the Fidelity
vehicle at Charters
,
were found in a toilet in accused number
24’s house
.
It stands to reason that accused 24 will
have received his share and kept it at his home
.
As to the exact nature
and reach of the inferences to be drawn from the money and related
exhibits found in possession of the accused
,
the remainder of
the evidence presented by the State in support of the charges has to
be considered
.
The data directly
obtained for the handsets from the cellphones of the accused
,
is highly relevant and informative at this point
,
bearing in
mind that all the accused
,
who testified
,
claimed that
the vehicles in which they were arrested
,
had done so up to
that point independently of each other and that their being stopped
at the tollgate together was purely fortuitous
.
From the“phonebooks”
contained in the handsets of the cellphones belonging to the accused
and found in their possession
on arrest
,
it appears with a
clarity which admits of no doubt
,
that the accused who claimed
that they
,
together with the motor vehicles in which they were
arrested
,
had been travelling up to the Mvoti tollgate
independently of each other and without knowledge that they were on
the same road
at the same time and place
,
were
,
on the
contrary
,
travelling together as a group with full knowledge
of each other
.
A brief word concerning
the phonebook in a cellphone
.
It is a facility on the
cellphone/handset in which the user may enter and capture for future
use
,
the cellphone – or telephone number of any person
or instance he might wish to call
.
Numbers may also be stored
in the SIM card in a handset
.
In this instance the numbers in
both the SIM card and the handset were consolidated to provide the
information which follows
.
In casu
,
the
accused
,
who had the numbers of co
-
accused and possible
accomplices stored in their phonebooks
,
did so under a name
,
nick
-
name
,
pseudonym or the like
.
That
,
we
believe
,
would indicate some sort of special relationship
rather than one en/passant
.
There was no other
plausible reason advanced or suggested in the evidence or argument
for the storage of such information in the
phonebook of a cellphone
and none occurs to us
.
A comparative analysis of
the phonebooks of the accused and the evidence of the accused who
testified
,
reveals the following
:
Accused 1,
was
in the BMW
and
accused 8
,
who was in the vehicle
with him
,
had reciprocally stored each other’s numbers
in their respective phonebooks
.
The same reciprocity is found
between
accused 1
and
accused 19
(in the
Hyundai
)
.
In
accused 1’s
phonebook were stored the numbers of
accused 22
(in the
red Combi
)
,
accused 7
(inthe
red Combi
)
,
accused 14
(in the
Hyundai
)
and
accused 18
in the
white Combi
.
When
accused 1
testified
concerning his co
-
accused whom he knew prior to
their arrest on 2 October 2006 he said he knew accused
5 and 7 (in
the red Combi)
.
Accused 8 and 20
(with him in the
BMW
)
,
accused 14
(in the
Hyundai
)
,
accused 24
(driver of the
white
Combi
) and
accused 26
(arrested later)
.
He
omitted
to mention
accused 19
(in the
Hyundai
)
whose name was in his phonebook and vice versa and
accused 18
(in the
white Combi
) whose name was in his (accused 1’s)
phonebook
.
Accused 2
was in the
white Combi
.
The number of
accused 22
(in the
red Combi
) was stored in his (accused 2’s)
phonebook
.
In turn
,
accused 2’s number
was
stored in the phonebooks of
accused 16
(in the
red Combi
)
and also in the phonebooks of
accused 9
,
21
and 23
(all in the
white Combi
)
.
Accused 2 (in the white
Combi) testified that he knew accused 7
,
16 and 22 (in the red
Combi) and accused 9
,
11
,
15
,
21 and 23 (in the
white Combi)
.
Accused 3
was in the
white Combi
.
He and
accused 19 (in the
Hyundai)
and
accused 17 (in the white Combi)
had
reciprocally stored each other’s numbers on their respective
phonebooks
.
The number of
accused 6
(also in the
white
Combi
) was stored in accused 3’s phonebook
.
Accused 3 did not
testify.
Accused 4
–
his phonebook revealed no names of relevance and he did not testify
.
Accused 5
was in the
red Combi
.
The numbers
of accused 7 and
22
(in the
red Combi
also) were stored on his (accused
5’s) phonebook
.
Accused 5
(in the
red Combi
) said that he knew
accused 1
(in the BMW)
,
accused 22 (with him in the red Combi) and accused 25 (arrested
later)
.
He omitted to mention accused 7 (in the red Combi)
whose name was in his phonebook
.
Accused 6
was in the
white Combi
.
The number of
accused 17
(also in the
white Combi
) was stored in his (accused 6’s)
phonebook
.
Accused 6 testified that
he knew accused 3 and 17 (in the white Combi with him)
.
Accused 7
was in the
red Combi
.
On his phonebook was stored the
number of
accused 13
,
also known as “Kehla”
,
(in the white Combi)
.
Accused 7’s
number was stored in the phonebooks of
accused 1
(in the
BMW
)
,
accused 5
(also in the
red Combi
)
,
and
accused 22
(also in the
red Combi
)
,
accused 19
(in the
Hyundai
) and
accused 11
(in the
white
Combi
)
.
Accused 7
(in the
red Combi
)
testified that he knew accused 12 (in the red Combi with him)
.
He
omitted
to mention that accused 1 (in the BMW)
,
accused 5 and 22 (in the red Combi with him)
,
accused 19 (in
the Hyundai) and accused 11 (in the white Combi)
,
all of whom
had his (accused 7’s) number stored on their phonebooks and
accused 18 (in the white Combi) whose number was
stored on his
phonebook
.
Accused 8
was
in the
BMW
.
He and
accused 1
(also in the
BMW
)
and
accused 19
(in the
Hyundai
) had reciprocally stored
each other’s numbers on their respective phones
.
On
accused 8’s phone was stored the numbers of
accused 22
(in
the red Combi
) and
accused 26
(who was arrested
later)
.
In turn
,
accused 8’s
number was
stored on the phonebook of
accused 20
(also in the
BMW
)
.
Accused 8 did not
testify.
Accused 9
was in the
white Combi
.
On his phonebook was stored the
numbers of
accused 22
(in the
red Combi
)
,
accused
11
and
15
(who were also in the
white Combi
) and
accused 25
(arrested later)
.
Accused 9’s
number was stored on the phonebook of
accused 16
(in the
red
Combi
)
.
Accused 9 did not
testify.
Accused 10
was in the
white Combi
.
He had no cellphone on his
person at the time of arrest
.
Accused 10 passed away during
the trial
.
Accused 11
was in the
white Combi
.
He (
accused 11
) and
accused 9
(also in the
white Combi
) and
accused 8
(in the
BMW
)
,
as well as
accused 25
(arrested
later) had reciprocally stored each other’s numbers in their
respective phonebooks
.
On
accused 11’s
phonebook
were stored the numbers of
accused 7 and 22
(both in the
red
Combi
) and
accused 2
,
13 and 23
(in
the
white Combi
)
.
Accused 11
(in the
white Combi
) testified that he knew
accused 2
,
9
,
18
,
21 and 23
(in
the
white Combi
with him)
,
accused 22
(in the
red
Combi
) and
accused 25
(arrested later)
.
He
omitted
to mention accused 7 (in the red Combi) and accused 13 (in the white
Combi) whose names were stored on his phonebook
,
and
accused
8
(in the
BMW
) whose number was stored on his (accused
11’s) phonebook and vice versa
.
Accused 12
was in the red Combi
.
He had 3 cellphones on him
,
one
of which belonged to accused 7
.
On his phonebooks no relevant
names or numbers appear
.
In turn
,
his number does not
appear in the phonebooks of any of the other accused
.
However
,
he testified that he knew accused 7 (in the red Combi with him)
.
Accused 13
(Kehla
) was in the
white Combi
.
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 Combi
) and
accused 9
,
11 and 23
(in the
white
Combi
)
.
Accused 13
(in the
white Combi
) in evidence maintained that he had no cellphone
on him when he was arrested
.
Among his co
-
accused he
knew only
accused 10
(deceased)
,
a statement belied by
the fact that his number was stored on the phones of
accused 7
,
9
,
11 and 23
as aforementioned
.
Accused 14
was
in the
Hyundai
.
His number was stored on the phonebooks
of
accused 1
(in the
BMW
) and
19
(also in the
Hyundai
)
During his testimony
accused 14 (in the Hyundai) said that he knew
accused 1
,
8 and 20
(in the
BMW
)
,
accused 19
(in the
Hyundai
with him) and
accused 26
(arrested later)
.
Accused 15
was
in the
white Combi
.
He and accused 9 and 21 (both in
the
white Combi
) had reciprocally stored their numbers on
their respective phonebooks
.
On his (
accused 15’s
)
phonebook was saved the numbers of
accused 22
(in the
red
Combi
) and
accused 19
(in the
Hyundai
) and his
number was on the phonebook of
accused 19
.
Accused 15 did not
testify.
Accused 16
was
in the
red Combi
.
He and
accused 17
(in the
white Combi
) had reciprocally stored each other’s
numbers on their respective phonebooks
.
On his (
accused
16’s
) phonebook was saved the number of
accused 22
(also
in the
red Combi
)
.
In turn
,
his number was saved
in the phonebook of
accused 9
(in the
white Combi)
.
Accused 16
(in the
red Combi
) testified that he knew
accused 22
(in the
red Combi
with him) and
accused 2 and 4
(in the
white
Combi
)
.
He
omitted
accused 17
(in the
white
Combi
) whose name was stored in his phonebook and vice versa
,
and
accused 9
(in the
white Combi
) who had his (
accused
16’s)
phone number stored in his phonebook
.
Accused 17
was in the
white Combi
.
He and
accused 3
(in the
white Combi
) and
accused 16
(in the
red Combi
)
had reciprocally stored each other’s numbers in their
respective phonebooks
.
On his (
accused 17’s
)
phonebook was saved the number of accused 22 (in the red Combi)
.
His number was saved on the phonebook of
accused 9
(in the
white Combi
)
.
Accused 17 did not
testify.
Accused 18
was in the white Combi
.
He and accused 11 and 21 (both in the
white Combi
) had reciprocally stored each other’s
numbers on their respective phonebooks
.
On the phonebook of
accused 18 was stored the numbers of
accused 1
(in the
BMW
)
,
accused 19
(in the
Hyundai
)
,
accused
22
(in the
red Combi
) and
accused 2
,
9 and 23
(all in the
white Combi
) and also
accused 25
(arrested later)
.
Accused 18
(in the
white Combi
) stated that he knew
accused 2
,
9
,
11 and23
(in the
white Combi
)
,
accused
22
(in the
red Combi
) and
accused 25
(arrested
later)
.
He
omitted
accused 21
(in the
white
Combi
) whose number was stored on his phonebook and vice versa
,
and also
accused 1
(in the
BMW
) and
accused 19
(in the
Hyundai)
whose numbers were on his phonebook
.
Accused 19
was in the
Hyundai
.
He and
accused 1 and 8
(both
in the
BMW
) had reciprocally stored each other’s numbers
on their respective phonebooks
.
Accused 19
had saved on
his phonebook the numbers of
accused 7
(in the
red
Combi
)
,
accused 13
and
15
(both in the
white
Combi
) and
accused 14
(also in the
Hyundai
)
,
together with the numbers of
accused 25 and 26
(both arrested
later)
.
The number of
accused 19
was saved on the
phonebooks of
accused 3 and 18
(both in the
white Combi)
.
Accused 19
(in the
Hyundai
) testified that he knew
accused 14
(in the
Hyundai
with him)
.
He
omitted
accused 1 and 8
(in the
BMW
) who had his number stored on their phonebooks and
vice versa
,
and
accused 7
(in the
red Combi
)
,
accused
13 and 15
(in the
white Combi
)
,
accused
25 and
26
(arrested later) whose numbers appear on his (accused 19’s)
phonebook and
accused 3 and 18
(in the
white Combi
) who
had his name on their phonebooks
.
Accused 20
was
in the
BMW
.
On his phonebook were saved the numbers of
accused 14
(in the
Hyundai
) and
accused 8
(also
in the
BMW
)
,
together with the number of
accused 26
(arrested later)
.
Accused 20
(in the
BMW
) testified that he knew
accused 8
(in the
BMW
with him)
He
omitted
accused
14
(in the
Hyundai
) and
26 (
arrested later) whose
numbers were stored on his phonebook
.
Accused 21
was in the
white Combi
.
He and
accused 15
and
18
(both in the
whiteCombi
) had reciprocally stored each other’s
numbers ontheir respective phonebooks
.
Accused 21 had stored on
his phonebook the numbers of
accused 2
,
9 and
11
(all in the
white Combi
)
.
The number of
accused
21
was stored on the phonebook of
accused 23
(also in the
white Combi
) and
accused 25
(arrested later)
.
Accused 21
(in the
white Combi
) testified that he knew
accused 2
,
9
,
11
,
15
,
18
and
23
(also in the
white Combi
) but
omitted
mention of
accused 25
(arrested later) on whose phonebook his
(accused 21’s) number appears
.
Accused 22
was in the
red Combi
.
He had stored in his phonebook
the number of
accused 7
(also in the
red Combi
)
.
Accused
22’s
number was stored in the phonebooks of
accused 1
and 8
(both in the
BMW
) and
accused 5 and 16
(both
in the
red Combi
) and
accused 2
,
9
,
11
,
15
and
18
(all in the
white
Combi
)
,
and
accused 25
(arrested later)
.
Accused 22
(in the
red Combi
) stated that he knew
accused 2
,
9
,
11
,
18
and
21
(in the
white Combi
) and
accused 5 and 16
(in the
red
Combi
with him)
.
He
omitted
accused 7
(in
the red Combi
) whose number appears on his (
accused 22’s
)
phonebook and accused 1 and 8 (in the BMW) and accused 15 and 21 (in
the
white Combi)
who had his number saved on their phonebooks
.
Accused 23
was in the
white Combi
.
He had stored on his phonebook
the numbers of
accused 2
,
11
,
13
,
18 and 21
(all in the
white Combi
)
.
Accused 23
(in the
white Combi
) stated that he knew
accused 17
,
18 and 21
(in the
white Combi
with him) and
accused 22
(in the
red Combi
)
.
He omitted a
ccused 2
,
11 and 13
(in the
white Combi
) whose numbers appear on his
phonebook
.
Accused 24
was the driver of the
white Combi
.
On his phonebook was
stored the number of
accused 26
(arrested later)
.
Accused 24
(driver
of the
white Combi
) testified that he knew
accused 1
(in the
BMW
) and
accused 26
(arrested later)
.
Accused 25
was arrested later
.
He and
accused 9 and 11
(both in
the
white Combi
) had reciprocally stored each other’s
numbers on their respective phonebooks
.
Accused 25
had
stored on his phonebook the numbers of
accused 2 and 21
(both
in the
white Combi
)
,
accused 8
(in the
BMW
)
and
accused 22 (
in the
red Combi
)
.
In turn
,
the number of
accused 25
was stored in the phonebooks of
accused 5
(in the
red Combi
)
,
accused 18
(in
the
white Combi
) and
,
accused 19
(in the
Hyundai
)
.
Accused 25
(arrested later) testified that he knew
accused 2
,
9
,
17
,
18 and 21
(in
the
white Combi
) and
accused 5 and 22
(in the
red
Combi
)
.
He
omitted
accused 11
(in the
white
Combi
) whose number appears on his phonebook and vice
versa
;
accused 8
(in the
BMW
) whose number was
stored on his phonebook
,
and
accused 19
(in the
Hyundai
) on whose phonebook his (accused 25’s) number is
saved
.
Accused 26
was
also arrested later
.
He had the number of accused 7 (in the
red Combi
) saved on his phonebook
.
The number of
accused 26
was saved on the phonebooks of
accused 24
(driver of the
white Combi
)
,
accused 19
(in
the
Hyundai
)
,
accused 1
,
8 and
20
(all in the
BMW
)
.
Accused 26
(arrested
later) testified that he knew
accused 24
(in the
white
Combi
)
,
accused 7
(in the
red Combi
)
,
accused
14 and 19
(in the Hyundai) and
accused 1
,
8
and
20
(in the
BMW
)
.
CONCLUSION :
As mentioned before
,
it seems to us that
,
in the ordinary course
,
a person
would store the name and number of another person in the phonebook of
his cellphone if such other person is a relative
,
friend or
someone he might need to phone for a specific reason or purpose
.
Seen from that perspective
,
in conjunction with testimony of
the accused
,
supra
,
and subject to a contrary plausible
explanation
,
everything seems to point to an inevitable
conclusion that the four vehicles in question and the accused in them
were travelling
on the N2 collaboratively south in concert and with
full knowledge of each other
.
In the absence of a plausible
explanation
,
it follows that the claim by the accused who
testified
,
that they were travelling independently
,
is
an outright lie
.
EVIDENCE OF THE
CELLPHONE RECORDS
The next phase of the
Judgment is devoted to the use of their cellphones by the accused
,
and other accomplices in the commission of the offences
,
who
are not arraigned before us
.
The cellphone records
reflecting the calls made and received by the accused to or from each
other and to or from related associates
,
require a detailed
discussion of the workings of a cellphone
,
the technology
behind it and the mechanisms by which calls are forwarded and
received and how the records of such are preserved
.
Earlier in the judgment
we mentioned that
,
save for accused 10 and 13 in the white
Combi
,
all 24 accused were arrested with their cellphones on
their persons – a number of them had two cellphones
.
When accused 25 and 26 were subsequently arrested they too had
cellphones in their possession
.
In the case of accused 10
and 13
,
the notes made by the police
,
as alluded to
earlier in the Judgment
,
do not reflect that cellphones were
obtained from either of them
.
However
,
the name “Kehla”
or phonetic variations thereof appear against the same cellphone
number (0766352808) in the phonebooks
of accused 7
,
9
,
11
,
19 and 23
.
Although the mechanism
and function of cellphones are addressed
infra
,
suffice
it at this stage to mention that in a cellphone the phone number is
not allocated to the handset
,
but to the SIM
-
card in it
furnished by the Service Provider
,
in this instance Vodacom
.
The cellphone record relating to the calls made to the aforementioned
number and the calls made from the cellphone in which the
SIM
-
card
with that number
,
reveals that the cellphone was activated
through cellphone towers at times and at places which are highly
relevant to the issues
before us
.
The question is who is
“Kehla”? On a conspectus of the relevant evidence
,
we
are satisfied that it was accused 13
.
Our reasons are
:
Accused 13’s
common name is Kehla
.
It is the name by which he is known by
his family and friends
.
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 Mvoti 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
.
He was arrested in the
company of accused 9
,
11 and 23 in whose phonebooks his
number was recorded
.
He was arrested in the white Combi 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
.
The reliable evidence in
point emanating from Captain Mncube
,
is that the white combi
left from accused 24’s house at Mzingazi with a full
complement on board
.
They followed the white Combi
,
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
.
Accused 13 was not a
fare
-
paying passenger in the Combi 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 cellphone 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
.
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 Combi
at
the time
.
The matter of accused 13’s credibility is
something which will be fully and appropriately addressed in due
course
.
CELLPHONE TELEPHONY
What follows is derived
from the collective wisdom of the expert witnesses
,
Mrs
Heyneke from Vodacom
,
Mrs du Plessis from MTN and Mr Prinsloo
,
an engineer attached to Vodacom
,
experienced in the setting up
and maintenance of a cellphone network
.
The qualifications and
expertise of the witnesses was not placed in dispute
,
as was
their testimony
.
In lay terms a cellular
telephone (cellphone)
,
not unlike a handheld 2
-
way
radio/transceiver
,
is a handheld mobile instrument which is
capable of receiving or transmitting radio signals through a
cellphone network operated
by service providers
,
such as
Vodacom and MTN
,
the only two relevant to these proceedings
.
When a cellphone is
turned on it automatically logs onto the Vodacom or MTN network
,
depending on the SIM
-
card installed in the hand piece
(handset)
.
A “SIM”
-
card is the acronym for
Subscriber Identity Module
.
It also carries the cellphone
number assigned to the user who inserts the SIM
-
card into the
handset
.
Technically the SIM
-
card securely stores the
Service Subscriber Key (IMSI) used to identify the subscriber on a
cellphone telephony device once it is
turned on
.
The relevant
network immediately authenticates the validity of the SIM
-
card
and the handset
.
The former establishes that the subscriber is
in credit in terms of a so
-
called contract with the network or
has “airtime” available in terms of a prepaid purchase of
such time from the Service
Provider
.
The purpose of the
authentication of the handset is to establish whether it has been
“blacklisted” in the case of theft
.
The authentication is
made by the network’s Central Data Base or “Core
Network”
.
The communication between
the cellphone and the core network takes place through a network of
cellphone towers usually found some
considerable distance apart
alongside major roads in rural areas and relatively closely spaced
and widely spread in urban areas
– the purpose being to effect
cellphone service coverage as fully as possible
.
In rural areas the radio
signal or beam usually has a 360 degrees spread
.
In other
words
,
all round or omni
-
directional
.
In urban
areas the towers are usually sectorised
.
In that case the
radio beams are directed in a specific compass direction at a spread
of 120 degrees
,
i
.
e
.
the signal spread is in the
direction where cellphone signal coverage is required for a specific
urban area
.
One such tower
,
relevant to the instance
,
is the Richards Bay Lighthouse tower
,
which according to the
expert testimony
,
serves only Mzingazi
,
a suburb of
Richards Bay – in the sense that cellphone calls made and
received in that suburb are picked up by that tower
and no other
.
The signal power of
towers in rural areas is generally stronger and the reach further
than the towers in urban areas
.
The signal or beam reach of
the former can be up to 32 kilometres as the crow flies
.
Where
the caller or receiver is within the signal spread or reach of two
cellphone towers
,
the closest will pick up and process the
call
.
When the cellphone is
switched on and authentication takes place or a call is made
,
radio signals pass between the cellphone and the cellphone tower
which carries the strongest signal
,
usually the tower closest
to the location of the cellphone and the person using it
.
In
turn
,
the tower transfers the signal to the central data base
of the network by means of landline cables
.
The reverse occurs
between the base and the cellphone during the authentication process
.
In the case of a call being made
,
the central data base
forwards the call signal to the tower closest to the cellphone being
called
.
Where the latter is on the move
,
for example in
a motor vehicle on the road
,
the tower through which the call
signal is received and transmitted to the cellphone being called
,
will continue to transmit the signal and the receiving cellphone will
continue to receive the call until the outer limit of the
towers’
range is reached
.
At that point the call is
immediately and without interruption “handed over” or
transferred to the next closest tower
further along the road
.
Exchange of signal between the central data base and the call
transmitting cellphone and the call receiving cellphone is constant
.
In a sense the central data base of the network will constantly
“know” the location of both the cellphone caller and
the
cellphone called
,
provided they are within signal range of a
cellphone tower
.
The area where one
tower’s radio signal spread and reach ends and another tower’s
spread and reach begins
,
is called the “equal power
boundary”
.
Those boundaries may overlap
,
in which
case any cellphone call made or received in that area will be picked
up by the tower which is the closer and has the stronger
signal
.
Where the caller or receiver is on the move
,
the call is
handed over to the next tower
,
which then has the stronger
signal
.
However the record of the call reflects the detail and
location of the tower through which the call was initiated
.
Where the caller (and his cellphone) moves out of the signal range of
a tower before the signal range of the next tower is entered
,
the call will end
.
To re
-
connect with
the cellphone he was in communication with when the signal ended
,
a new call will have to be made
.
The record of the
reconnection will reflect the location and detail of the tower
through which it is again initiated
.
Generally Vodacom and MTN
have their own towers
.
Occasionally a cellphone tower is
shared between the two networks
,
but as each network has its
own designated radio frequency range
,
the call data of each
remains its own and cannot at all be mingled with the data of the
other network
.
All calls made and received through the Vodacom
and MTN networks
,
are separately recorded and stored by the
core network of each
.
All particulars pertaining to the caller
and receiver
,
the location of each
,
the time and
duration (to the nearest second) of each and every cellphone call
,
are recorded and stored
.
The main objective of such a detailed
and exact record is for billing purposes
.
Someone has to pay
for the service
.
Ironically
,
herein lies the guarantee
of accuracy and reliability of the cellphone records
.
DATA OBTAINED FROM THE
ACCUSED’S HANDSETS
The cellphone handsets
confiscated from the accusedwere hand
-
delivered
to Captain Moller from the Pretoria High
-
Tech
Centre of the South African Police Services
,
who
,
with specialised
equipment extracted from the cellphone handsets all information
applicable to and stored in each
.
Captain Moller
’
s
evidence with regard to his qualifications and expertise
,
and the suitability of
the equipment he employed were not placed in issue and are accepted
.
Using the relevant
information and data from the individual handsets
,
as aforementioned
,
the record of the calls
made from and received on each such cellphone/handset during the
period 1 September 2006 to 3 October 2006
,
both dates inclusive
,
was obtained from the
Service Provider with whose cellphone network the cellphone was
linked
.
In the instance only two
Service Providers are involved – Vodacom and MTN
The cellphone records of
the accused were obtained and placed before the Court by appropriate
court orders and subpoenae
.
After
a period of time
,
the Service providers
transfer the cellphone records to their
“
archives
”
,
seemingly to maintain the
storage capacity of their current records at a manageable
level
.
Before
the network
,
whether Vodacom or
MTN
,
may
disclose the relevant information stored in the archives of its
central data base
,
a court order directing
such disclosure first has to be obtained in terms of the provisions
of section 19 of the Regulation of Interception
of Communications and
the Provision of Communication
-
related
Information Act
,
70 of 2002
.
In
casu
the
requisite directives were issued by the Honourable Mr Justice Seriti
,
a Judge of the Transvaal
Provincial Division of the High Court
.
Thereafter a
subpoena
duces tecum
was
obtained and served on each of the Service Providers under the
provisions of section 205 of the Criminal Procedure Act
.
Acting under direction of
those measures Mrs Heyneke
,
on behalf of Vodacom
,
and Mrs du Plessis
,
on behalf of MTN
,
made the relevant
cellphone records available to counsel for the State to use in
evidence
.
The record of all the
calls from and received on the relevant cellphones which were in the
possession of the individual accused
,
as aforementioned
,
during the said period
,
were proved and handed in as Exhibit
“Z1” (in respect of accused 1) to “Z26” (in
respect of accused 26)
– the numbers following the letter “Z”
on the exhibits signifying the numbers allocated to the accused
during
the trial
.
That the record of the calls listed in
Exhibit Z applicable to each accused
,
correctly reflected the
nature
,
time
,
place and duration of the calls made and
received
,
together with the cellphone number of the person
called or calling
,
were not placed in issue and was noted as
common cause between the State and the accused
.
At this point it would be
instructive to include as part hereof a glossary of terms and
abbreviations which would assist in understanding
the information
contained in the exhibits in question
.
VODACOM
:
Col 1
:
MSISDN
:
Mobile Subscriber Integrated Services Digital Network
.
(The SIM card number 082
...
)
Col 2
:
IMSI
:
International Mobile Subscriber Identity
.
(An electronically
allocated serial number of a SIM card)
Col 3
:
IMEI
:
International Mobile Equipment Identity
.
(This is the serial
number of the handset)
Col 4
:
CALL DATE
:
The date calls were received or made
.
CALL TIME
:
The
time calls were received or made
.
Col 5
:
MTC
:
Mobile Terminated Call
.
(Incoming call received)
MOC
:
Mobile
Originating Call
.
(Outgoing call made)
CF
:
Call Forward
.
(The cell phone was not answered and the call went through to
voicemail
,
or the phone was switched off and the call went
directly to voicemail
,
or the phone could be diverted)
MTSMS
:
Short
Message Service Terminating
.
(Incoming Message)
MOSMS
:
Short
Message Service Originating
.
(Outgoing Message)
Col 6
:
DURATION
:
The duration of received or made calls
.
(measured in seconds)
Col 7
:
OTHER
PARTY
:
Number of other party when making or receiving calls
.
Col 8
:
CELL ID
:
The Base station’s code reference
.
Col 9
:
CELL NAME
:
The Base station when receiving or making calls
.
MTN
Col 1
:
CALL DATE
:
The date calls were received or made
.
Col 2
:
CALL TIME
:
The time calls were received or made
.
Col 3
:
CALLED
:
Outgoing call
Col 4
:
CALLING
:
Incoming call
Col 5
:
I or O as
indicated in the column labelled “Call Direction” –
“I” for incoming calls and “O”
for outgoing
calls
.
Col 6
:
In the
column labelled as “Service Code”“T11” should
be interpreted as a successful call
,“
T22” means a
outgoing SMS
,
and “T23” is indicated in the
instance of an incoming SMS
.
Col 7
:
CALL
DURATION (Measured in seconds)
Col 8
:
IMEI
:
International Mobile Equipment Identity
.
(This is the serial
number of the handset)
Col 9
:
CELL ID
:
The Base station’s code reference
.
Col 10
:
The
column labelled as “Site Location” indicates the name of
the base station whereas the column labelled as “Site
Suburb”
indicates the greater region of where the “Site Location”
is situated
.
Col 11
:
The name
of the base station is often derived from the area where the base
station is situated
.
As appears from Exhibit
“Z1” to “Z26”
,
each exhibit reflects
every call made and received by the accused on the relevant handsets
from 1 September 2006 to 3 October 2006
.
In all some 72 126
individual callsare involved and the analyst
,
Mrs Botha
,
had to analyse them all in order to extract the calls relevant to the
issues raised in these proceedings
.
It took months of
painstaking effort to be in a position to place all the calls
,
said to have been made and received by the accused through their
cellphones during the relevant period
,
before the Court
.
The correctness and
accuracy of the analyses made by Mrs Botha
,
was tested over
and over again during the course of these protracted proceedings in
which the cellphone records of the accused
played a major
,
if
not definitive
,
role
.
In all
,
thewitness spent
14 days in the witness stand
.
The evidence given by Mrs Botha
is not based on expert opinion
,
but on facts in the form of
calls made and received on the respective cellphones
,
to be
searched for and extracted from the myriad of call data furnished by
the Service Providers (Vodacom and MTN)
,
in exhibits Z1 to
Z26
.
To confirm the correctness of any call thus singled out
,
all one need do is to find the call where it is reflected in the
relevant exhibit “Z” – readily done once the
date
,
time (exact to a second)
,
together with the number of the
caller or called is furnished by the witness
.
After she gave her
evidence
,
Mrs Botha was requested by the Court
,
at the
behest of counsel for the State and the accused and
,
for that
matter
,
itself
,
to remain on and be available to the
State and defence and from time to time by the Court
,
when the
need arose to establish where a particular accused was
,
when
he made and received calls
,
as indicated by the location of
the towers through which the calls were routed
.
Accordingly Mrs
Botha was throughout available to assist all counsel and the court
.
The assistance in that context
,
sought from the witness by the
Court
,
occurred with the full knowledge and consent of counsel
for both the State and the accused
.
Without that continued
assistance
,
counsel
,
and for that matter the Court
,
would have had to spend endless hours going through 72 000
-
odd
calls to extract the required information
.
When
,
as
here
,
the case sought to be made out against the accused
,
is substantially based on cellphone information concerning the
movements and location relative to the time and place of the
occurrence
of the crimes charged to the accused
,
the services
of an analyst such as Mrs Botha is indispensable to a proper and fair
hearing and the Administration of Justice
.
As far as I am
aware this is the first case in which cellphone evidence of this
magnitude has been dealt with
.
THE USE OF CELLPHONES
BY THE ACCUSED
As all the primary and
secondary offences
,
save those relating to the
Firearms
Control Act
>,
were committed on or about the N2 in the vicinity
of Charters and Penicuik on 2 October 2006
,
and as the
cellphone records of a substantial number of the accused
,
including accused 25 and 26
,
who were arrested later
,
activated
a number of cellphone towers
,
which serve the areas through
which the N2 runs
,
it became important to determine what
stretch of the N2 is served by a particular tower or towers
.
That was done by
Inspector Kruger
.
He is suitably qualified in the use of
specialised equipment designed for that purpose
,
called
Geographical Information Systems (GIS)
.
His qualifications
,
expertise and the suitability of the equipment he employed
,
were
not placed in issue
.
So too his evidence and
the findings which he made
.
Using satellite photographs of the
relevant areas though which the N2 meanders
,
he marked the
relevant towers and physically determined the position of each with
reference to its exact longitude and latitude
by applying a system
called Global Positioning Systems (GPS)
,
which determines a
position on the ground to within 50 millimetres of accuracy
.
The satellite photographs were handed in as Exhibit “JJ”
.
By travelling along the N2 all roads pointed out to him by the
Investigating Officer
,
Inspector Kruger determined the length
of each stretch of road
,
mostly the N2
,
which was
served by a particular cellphone tower
.
In that fashion the
witness depicted on Exhibit JJ
,
by colouring in
,
in
different hues
,
the section of road served by each particular
tower along the N2
.
By measuring in millimetres any given
colour
-
coded section of the road on exhibit “JJ”
,
the distance over which the tower coverage extends on that section is
represented in the ratio 10 millimetres equals 0
.
7 kilometres
.
A simple exercise proving the accuracy of the length of the
colour
-
coded sections depicted on Exhibit JJ
,
is to
measure the distance expressed in millimetres and applying the
furnished ratio
.
This was done in order to
obtain the distance so calculated between Charters and Penicuik
.
The answer obtained
,
is within a kilometre or so
,
the
same as the known distance between the two points measured by road
,
namely 33 kilometres
.
Another aspect about the
evidence of Inspector Kruger becomes significant when one analyses
the location on the N2 where certain
of the accused made and received
cellphone calls
.
Certain of those calls occurred in an area
referred to as “the Equal Power Boundary”
.
At the
Equal Power Boundaries some overlapping may occur
.
Those are
areas where the reach of one cellphone tower ends and another begins
.
Such areas are reflected on Exhibit JJ where the differently coloured
sections of the N2 meet
.
THE MIGRATION OF THE
ACCUSED ON 1 AND 2 OCTOBER 2006 TO RICHARDS BAY AND MZINGAZI
Accused 1
,
8
,
14
,
20 and 26 are from the Durban area
.
Accused 24 lives at
Mzingazi
,
Richards Bay
.
Accused 2
,
3
,
4
,
5
,
6
,
7
,
9
,
10 (deceased)
,
11
,
12
,
13
,
15
,
16
,
17
,
18
,
19
,
21
,
22
,
23 and 25 all reside in the greater
Johannesburg area
.
INTRODUCTION
Whilst it is common cause
that all the accused were in the Empangeni
-
Richards Bay area
on 1
-
2 October 2006
,
they all deny complicity in any of
the offences which form the subject
-
matter of these
proceedingsor that their presence in the area related to any of the
offences
.
Accused 2 and 21
testified that the two of them
,
together with accused 15
,
who did not testify
,
travelled together in one vehicle from
Johannesburg to Richards Bay
.
Accused 6 testified that he and
accused 3 and 17
,
neither of whom testified
,
travelled
to Richards Bay in one motor vehicle from Johannesburg
.
Accused 18 and 23 both
testified that they travelled to Richards Bay in one vehicle from
Johannesburg
.
The remainder of the
accused
,
who testified
,
claimed that each had travelled
on his own from Johannesburg to the Empangeni
-
Richards Bay
area
,
quite unaware that any of his co
-
accused had
undertaken similar journeys
.
Thus accused 7
,
11
,
12
,
13
,
16
,
22 and 25 testified that each
travelled on his own and independently of the others
.
Accused
5 testified that he had travelled by air from Johannesburg to Durban
to buy stock and from there to Stanger to buy cheaper
stock and from
there on to Richards Bay for love
.
From the accused who
hailed from Durban
,
who travelled to Richards Bay during 2
October 2006
,
accused 1 testified that he travelled on his
own
;
accused 20 and 8 travelled together in one vehicle and so
did accused 14 and 19
,
who
,
although he resides in
Johannesburg
,
was in Durban at the time
;
accused 26
testified that he travelled on his own
,
but was in the
Empangeni
-
Richards Bay region on 2 October 2006
,
as he
had a business there
.
Accused 3
,
4
,
8
,
9
,
15 and 17 did not testify
,
but all ended
up in Richards Bay on 2 October 2006
.
Notably
,
save for
the accused who travelled together in the same motor vehicle
,
the common thread that runs through the testimony of all the
accused
,
is that they had travelled to Richards Bay
independently
,
and without knowledge of any of the others or
their movements
.
That claim by the accused
of individual and independent trips to Richards Bay from Johannesburg
and Durban respectively
,
is graphically belied by the record
of the cellphone calls made by the accused on the way
.
THE ACCUSED WHO
TRAVELLED FROM JOHANNESBURG
The route taken:
Judging from the
cellphone records of the accused and the towers they activated along
the way as they travelled
,
they all followed the same route
from the greater Johannesburg area to the Empangeni
-
Richards
Bay region
.
From Vosloorust
,
which is adjacent to the
National road N3
,
they travelled on the N3 to Heidelberg (23
kilometres)
.
From Heidelberg on the Provincial road
,
via Balfour (32 kilometres) Standerton (74 kilometres)
,
Volksrust (83 kilometres) to Ingogo – plus minus 10 kilometres
from the Newcastle tower
.
From Ingogo the R34 runs via Utrecht
to an area called Bembaskop
,
served by a cellphone tower with
the same name
,
(75 kilometres)
.
At that point the R34
joins the R33 which runs between Dundee and Vryheid
.
The route
then followed was along the R33 to Vryheid (26 kilometres)
.
From that point the R34
via Melmoth to Mandawe Cross was taken
.
The latter is a
well
-
known landmark at Nkwaleni (156 kilometres from Vryheid)
.
At Mandawe Cross the R34 meets the R66 coming from Eshowe head
-
on
,
forming a T
-
junction
.
From there the R34 proceeds along
the “long leg” of the T
-
junction
.
That is
the route which the accused followed from that point on
.
Coming from the direction of Vryheid
,
as did the accused
,
the road user coming to that T
-
junction
,
has two routes
to Empangeni
-
Richards Bay to choose from – to continue
straight on along the R66 past Eshowe or to turn into the long
-
leg
of the T
-
junction on the R34 and from there go on to Empangeni
(44 kilometres) further on to Mzingazi
,
Richards Bay (27
kilometres)
.
According to the relevant tower activation
,
it appears that the accused from Johannesburg used the latter road
from Mandawe Cross (Nkwaleni)
.
An analysis of the
cellphone records of the accused
,
who set out from
Johannesburg to journey to Richards Bay
,
enables one to
determine the route taken
;
the points of departure and the
approximate time thereof
;
the identity of the persons the
accused communicated with by cellphone along the way from
Johannesburg to Richards Bay
;
together with the location of
the caller and called and the exact time of such communications
.
The relevant cellphone
records reveal the following
:
The Vosloorust
tower
was activated by cellphone calls made or received
(hereinafter referred to as “calls made”) by accused 4
,
16
,
22
,
25
,
all claiming that they had
travelled solo
;
a certain “Spiwet”
,
an
accomplice about who more will be said later
,
and accused 15
and 21
,
who were travelling together
.
The calls were
made or received between 21h44 (accused 21) and 22h22 (accused 22)
.
Accused 4’s call was considerably earlier – 19h49
.
During the calls made at
Vosloorust accused 22 spoke with Spiwet (22h22) and with accused 16
(22h05)
;
accused 4 spoke with accused 16 (19h49)
;
Spiwet spoke with accused 11
,
who was at that time at
Steynskraal (between Heidelberg and Balfour) (22h04)
.
It
appears that accused 11 remained there
,
for his next cellphone
communication
,
this time with accused 18
,
who was with
accused 23
,
(22h24) also took place while accused 11 was still
at Steynskraal
.
Thereafter accused 11’s movements
paralleled that of the other accused from tower to tower along the
way
.
Koppieskraal Tower
(situate between Vosloorust and Heidelberg on the N3) was activated
by calls made by accused 22 (22h32) and accused 18 (21h52)
.
Accused 22’s call was to accused 26 (then at Empangeni)
.
Accused 18’s call was to accused 11 (then at Steynskraal)
.
The Heidelberg
tower
was activated by calls made by accused 9 in
communication with accused 22 (22h25)
;
accused 22 also
communicating with accused 9 (22h40)
;
Spiwet in communication
with accused 11 (22h16) and accused 15
,
who was with accused
2 and 21 (22h40) and also with accused 23
,
who had accused 18
with him (22h18)
.
The Steynskraal
tower
(between Heidelberg and Balfour) was activated by
calls made by accused 13 (22h21) and accused 18
,
accompanied
by accused 23 (22h24)
.
The Balfour tower
was activated by calls made by accused 11 communicating with accused
23 (with accused 18) (22h34)
;
accused 16 communicated with
accused 22 (23h07)
;
accused 22 communicated with accused 19
,
then in Durban (22h56)
.
The Sunnymead
tower
(between Balfour and Standerton) was activated by
calls made by accused 11 when he communicated with accused 23
,
who was with accused 18 (22h59)
,
accused 22 communicated with
accused 5
,
then still in Johannesburg (23h09) and accused 1
,
who was in Durban (23h14)
.
At Standerton the
R23 runs through the town and is within signal reach of 5 towers,
Holmdene,
Kosmospark,
Standerton
tower,
Sakhile and Platrand
.
When the
calls made by the accused at Standerton are analysed they reveal a
plethora of communications between the accused
,
between 23h27
and 23h52 – a time
-
frame of 25 minutes
,
very
much as if they were taking a break
.
Accused 11 spoke with
accused 22 (23h27) and with accused 23 (in the company of accused 18)
(23h29) and again with accused 22 (23h38)
and once more with accused
22 (23h51)
;
accused 22 communicated with Spiwet (23h30) and
again at 23h35
,
and with accused 25 (23h37) and accused 9
(23h50)
;
accused 9 communicated with accused 16 (23h48)
;
accused 23 received 2 sms’s (cellphone messages) (23h34 and
23h35)
;
accused 21 (who was with accused 2 and 15) made a call
to an unknown person (23h55)
;
accused 23 communicated with
accused 18 (23h36)
.
When questioned about that call the
explanation was that accused 18 had gone to buy “Kentucky Fried
Chicken”
.
The record shows that
accused 9 and 25 called accused 22 at exactly the same time
.
Accused’
s 25
’s call was fractionally earlier and was
received whilst accused 9’s call went to “voicemail”
,
resulting in a missed call
.
This type of co
-
incidence
recurred a number of times in the cellphone records relating to this
trip by the accused
.
It appears to convey a need on the part
of the accused to make contact or stay in contact constantly –
a notion supported
by the sheer frequency of communication between
the accused
.
The Volksrust
tower
was activated by calls made when accused 22 and
accused 9 communicated with each other at 00h27 and 00h35
.
The Krieglersholm
tower
(between Volksrust and Ingogo) was activated by a call
made by accused 9 to 22
,
who at that point in time was in the
signal reach of the Newcastle tower (00h59) close to Ingogo
.
The Ingogo
turn-off from the R23 onto the R34 falls within the signal range of
the Newcastle tower
.
That tower was activated by
calls made when accused 9 and 23 communicated with each other at
01h07 and again at 01h11
;
accused 16 communicated with
accused 9 (01h14) – the latter then receiving the call through
the Madadeni Tower
,
a neighbouring tower to Newcastle tower
;
accused 16 communicated also with accused 22 (01h15)
;
accused
number 22 communicated with Spiwet 01h12 and also accused 23
,
(who was with accused 18) at 01h13
.
The Madadeni tower
(between Ingogo turn
-
off and Utrecht) was activated by calls
made when accused 9 communicated with accused 16
,
who
received the call through the Newcastle tower (01h14)
;
accused 9 was in communication with accused 22 (also at 01h14)
-
the two calls were made within a minute
;
accused 21
,
(with
accused 2 and 15) called an unknown number (01h17)
.
The Utrecht tower
was activated by a call made when accused 22 communicated with
Spiwet (01h36)
.
The Bembaskop
tower
was activated by a call when accused 22 communicated
with accused 9 (01h55)
.
The Vryheid tower
was activated by calls when accused 9 communicated with accused 22
(02h16)
;
accused 25 received two sms’s (02h13 and
02h14)
.
The Jordaan
Witrand tower
(between Vryheid and Melmoth) was activated by
a call made when accused 16 communicated with accused 22 (02h52)
.
The Melmoth tower
was activated by calls made when accused 22 communicated with Spiwet
(03h38) and also with accused 16
,
who at that time was
receiving signal from the neighbouring Merino tower (03h38)
.
On this occasion also
the two calls were made within a minute
.
As mentioned earlier
the cellphone records furnish any given time up to the nearest
second
.
Thus a comparison of the two calls in question is
shown to have been made in the same minute
.
The Mandawe Cross
tower
where the R34 joins the R66 coming from the opposite
direction
,
as described earlier
,
accommodated a flurry
of cellphone activity
,
which
,
considering the persons
called and the fact that the junction provides alternative routes to
Empangeni
-
Richards Bay
,
also as described earlier
,
gives the impression that enquiries were being made concerning what
road to take
,
i
.
e
.
the R66 past Eshowe or the
R34 through Empangeni
.
Whatever the reason
,
that tower
was activated by calls made when accused 9 communicated with accused
22 (03h58 and 04h02 and 04h05 and 04h09)
;
accused 22
communicated with Spiwet (03h58 and 04h00) and also with accused 26
(04h01)
;
Spiwet communicated with accused 26 (03h59 and
04h00) and also with accused 24 (04h02)
.
Accused 26 was in
the Empangeni region and accused 24 at home in Mzingazi when
Spiwet’s calls were received
.
It seems significant that
at 04h32
,
when Spiwet next called accused 24 the latter was at
Meerensee
,
while Spiwet was at Empangeni
.
It appears
that accused 24 probably arranged to meet Spiwet and guide him home
,
as Spiwet’s next communication was through the Richards Bay
Lighthouse tower at 05h03 followed by a call made by accused
24
through the same tower at 05h07
.
The Horseshoe
Sugar Estate tower
(which is in the vicinity of Jabulani)
and provides radio signal to that stretch of the R34
.
It will
be recalled that the State witness (Sithole)
,
came across the
four motor vehicles in that area
,
which aroused his
suspicion
.
Sithole testified that he left his residence at
Eshowe at about 03h30 and travelled to work at Fidelity’s main
base at
Richards Bay
.
He travelled on the R66 to Nkwaleni
(Mandawe Cross) and at the junction turned on to the R34 towards
Empangeni
.
Jabulani is about 40 kilometres or so removed from
Eshowe
.
The Horseshoe Sugar Estate tower was activated by
calls made when accused 22 communicated with accused 9 (04h04) and
with Spiwet
(04h09)
.
Sithole estimated that
his time of contact with the suspicious vehicles occurred at about
03h45
.
In our view that estimate is questionable
,
considering the distance which he had to travel to get to Jabulani
.
For reasons to be elaborated upon
,
we find the probabilities
overwhelming that the 4 vehicles which Sithole encountered were among
the vehicles in which the accused
that have been mentioned thus
-
far
,
were travelling in at the time
.
Bear in mind at this point
,
the history of the movements of the four vehicles in question
,
which has already been recounted earlier in the Judgment
.
The Chorley Park
tower
is a neighbouring tower to the Horseshoe Sugar Estate
tower and closer to Empangeni
,
was activated by calls made
when accused 22 communicated with accused 16 (04h20) and also with
accused 9 (04h36)
.
The Empangeni
tower
was activated by calls made when accused 22
communicated with accused 9 (04h41) and with accused 25 (05h06)
.
When the latter call was made accused 22 was at Mzingazi
.
The Fairview
tower
,
a neighbouring tower in Empangeni
,
was
activated by a call made when accused 22 communicated with accused
16 (04h30) who was also at Fairview tower
.
The Umhlatuze
Canal tower
next to the John Ross highway on the way to
Meerensee was activated when accused 22 communicated with accused 9
who had reception
through the Chorley Park tower at Empangeni
(04h36)
.
The Ricardia
Primary tower
,
also providing reception to the John
Ross highway
,
was activated by a call made when accused 22
again communicated with accused 9 (04h42) who was at Empangeni
.
The Tuzi Gazi
tower
,
at the Small Craft Harbour which provides
signal to that section of the John Ross highway
,
was
activated by a call made when accused 22 communicated with accused
16 (04h43)
,
who was also at Tuzi Gazi
.
The Richards Bay
Lighthouse tower
,
which provides cellphone signal
only to the Mzingazi suburb of Richards Bay
,
was activated at
04h52 by a call from accused 22 to accused 9
,
who was
receiving through the Bayside Aluminum tower on the John Ross
highway and a neighbouring tower to the Tuzi Gazi tower
.
Accused 9 and apparently
with him accused 25
,
appeared to have missed their destination
at Mzingazi
.
They seemed to have driven on along the
Dune
road
to
Richards Bay Minerals.
At 05h07 accused 22
,
through the Richards Bay Lighthouse tower communicated with accused 9
who was at the
Richards Bay Minerals tower.
Contemporaneously
accused 25 received two sms’s while at Richards Bay Minerals
tower at 05h07
.
As subsequent calls made by accused 9 and 25
were made and received by them at Mzingazi
,
it would appear
that they finally reached their destination
.
During the time
that accused 9 and 25 had apparently strayed past their destination
at Mzingazi and turned around at Richards Bay
Minerals
,
accused 22 attempted to call accused 25 and 9 at 05
:
05
,
05
:
06 and 05
:
07
.
WHAT FOLLOWS IS A LIST
OF FIRST CALLS MADE OR RECEIVED BY THE ACCUSED ATMZINGAZI THROUGH
RICHARDS BAY LIGHTHOUSE TOWER
Accused 22 – 04h52
Spiwet – 05h30
Accused 2 (accompanied
by accused 15 and 21) – 06h00
Accused 16 – 06h02
Accused 11 – 07h15
Accused 25 (who appeared
to have been in the company of accused 9 at Richards Bay Minerals –
07h18)
Accused 13 – 07h34
Accused 26 – 08h33
Accused 23 (accompanied
by accused 18) – 08h48
Accused 9 – 08h57
Accused 4 – 09h06
.
The only calls made by
accused 4 were at Vosloorust at 19h49 on 1 October 2006 and the next
one at Mzingazi at 09h06 on 2 October
2006
.
Accused 21 (accompanied
by accused 2 and 15) – 09h38
Accused 18 (who was
accompanied by accused 23) at 11h05
Accused 15 (who was
accompanied by accused 2 and 21) – 12h01
.
The times listed above
,
should not be understood to point to the arrival time of the accused
.
What it does mean is that the caller was at Mzingazi at that time
.
Sithole had shadowed the
four suspect motor vehicles from Jabulani along the R34
.
As
the vehicles progressed
,
the accused’s cellphone
activities sequentially activated the towers along the way until
Mzingazi was reached
.
Sithole saw all four vehicles enter the
premises of accused number 24’s house
.
The timeframe
,
within which the cellphone calls were made and registered in relation
to the various towers from the Horseshoe Sugar Estate onward
up to
Mzingazi
,
coincides broadly with the time estimates made by
Sithole while he was tailing the suspect vehicles
.
In the absence of a
plausible explanation consistent with innocence
,
arising from
the explanations given by the accused in evidence
,
which comes
up for consideration later in the Judgment
,
the picture that
distinctly emerges from a study of the movements of each of the
accused from Vosloorust to Mzingazi
,
leads us to conclude
:
That the accused
undoubtedly travelled to Richards Bay in a group following the same
route for a distance of 586 kilometres
.
It was a planned
expedition
,
rather than a trip undertaken by persons
travelling independently
.
They stayed in constant
contact with each other throughout the night of 1
-
2 October
2006
,
while under way
.
The accused were
travelling in five motor vehicles at least
.
As commented
earlier
,
accused 9 and 25 drove past their apparent
destination at Mzingaziand obviously were not among the four
vehicles followed by Sithole
.
That inference that at least
five vehicles were involved is founded upon our view of ordinary
human conduct and natural logic
– a person in a motor vehicle
will not use a cellphone to communicate with a fellow passenger
.
Save for one explained incident
,
this observation is
demonstrated by the accused who were
,
on their own version
,
travelling together in the same motor vehicle
.
–
accused 2
,
15
,
25 and accused 18and 23
,
who did
not telephone each other during the journey to Richards Bay
,
except
when accused 18 left accused 23 to buy Kentucky Fried Chicken at
Standerton – here the exception does seem to prove
the rule
.
The accused made and
received cellphone calls inter se
,
mostly through the same
towers and when not
,
a neighbouring tower
,
where one
of them had obviously moved across the equal power boundary between
the towers
,
as explained earlier
.
The time and
location of their calls conform to the average motor vehicle
travelling time over the distances involved
.
At Standerton and
Mandawe Cross the concentration of calls appears to indicate that
the accused had come to a stop for a while
,
and that they did
so together
,
given the times of the calls and the numbers of
the callers involved
.
The undeniable impression one gets is
that the accused had stopped at Standerton to get refreshments and
at Mandawe Crossing
to get road directions or togather before moving
on
.
Hence the calls to accused 24 at Richards Bay and accused
26 at Empangeni
.
On an overview of the
preceding resumé and observations
,
subject to
aplausible explanation
,
as mentioned before
,
everything
appears to indicate that
,
on the face of it
,
accused
22
,
9
,
2 (and with him accused 15 and 21)
,
accused 4
,
11
,
13
,
16
,
18 (and with him
accused 23
,
25 and Spiwet) had travelled from the Johannesburg
region to Mzingazi in concert and had with them the four suspect
vehicles
,
which Sithole encountered and followed to the house
of accused 24
.
In addition
,
the number of persons
observed by Sithole in the suspect motor vehicles
,
as
aforementioned
,
generally conforms to the numbers of the above
accused
.
To be sure
,
in the
case of accused 4 the cellphone records show only two calls made by
him – the one at the beginning and the other at
the end of the
trip from Vosloorust to Mzingazi
.
The paucity of cellphone
use by accused 4 during the trip
,
is supplemented by the fact
that he was arrested in the white Combi which was observed leaving
accused 24’s house
,
which gives rise to the inference
that his last
-
mentioned call made from Mzingazi made at 09h06
,
was
,
indeed made from accused 24’s house
.
Without finding it as a
fact at this stage
,
the abovementioned facts and
observations
,
it seems to us
,
emphatically puts paid
to the claims by accused 22
,
11
,
13 and 16 that they
had travelled to Empangeni
-
Richards Bay on their own
.
It
also puts paid to the collective claims by accused 2
,
15
,
21
,
18 and 23
,
that they too had not
accompanied any other accused or motor vehicle to Richards
Bay
.
Judging from the two calls made by accused 4 at the
commencement and the end of the trip and related to the calls of the
other
accused
,
it would seem that he was amongst them
.
Accused 7
,
on the
one hand
,
and accused 3
,
6 and 17
,
(together in
one vehicle)
,
on the other
,
travelled from the
Johannesburg region somewhat later than the other accused
.
Both
accused 7 and the group (accused 3
,
6 and 17) activated the
Koppieskraal tower between Volksrust and Heidelberg at 05h02
.
Along the way from there
members of the group activated a number of towers
,
indicating
that they followed the same route as the other accused
,
who
preceded them
.
At 08h21 accused 7 made a call through the
Todden Farm tower
,
which is situated between Vryheid and
Melmoth some 35 kilometres from Vryheid
.
At 08h25 (4 minutes
later) accused 17 (with the group) received a call through the same
tower
.
At 09h43 accused 7 made a call through the Horseshoe
Sugar Estate tower and four minutes later at 09h42
,
accused 17
received a call through the same tower
.
At Mzingazi accused 7
made his first call through the Richards Bay Lighthouse tower at
10h27
,
followed by accused 17 at 10h42
.
Accused 3 and 6
also made calls from there subsequently
.
The inference seems
inescapable that accused 7 and the group formed by accused 3
,
6
and 17
,
travelled together
,
probably in the same motor
vehicle
.
Accused 12 left the
Johannesburg area even later on 2 October 2006
.
He first
appears at Standerton when he made a call through the Holmdene tower
at 12h37
.
Thereafter at Krieglersholm (near the Ingogo
turn
-
off) when he made two consecutive calls at 14h02 and
14h03
.
Thereafter at Vryheid he made a call through that
tower at 15h25
.
At Melmoth he made a call
through the Melmoth tower at 16h51 and again at Mandawe Cross at
17h18
.
Finally
,
at Empangeni he made three calls to
unknown numbers at 17h58
,
18h26 and 22h06
.
At 22h14
accused 7 called accused 12 at Empangeni from Mzingazi
.
On the face of it it
would seem that accused 12 waited at Empangeni until summoned by
accused 7 to come to accused 24’s house
at Mzingazi
,
hence the presence there of the red Combi
,
driven by accused
12 at the time of his arrest
;
being noticed by Captain Mncube
when he and Govender drove by
.
The outcome:
In conjunction with the
comment we made at the outset concerning the trek to Richards Bay by
the accused
,
and the apparent lack of veracity to their claims
that they had
,
whether as a group or individually
,
undertaken their trips without knowledge of the other accused
travelling the same way
,
the outcome of the analysis of their
cellphone communications
,
supra
,
shows
,
in our
view unquestionably so
,
that all of the accused had travelled
to Richards Bay collaboratively and with full knowledge of each
other’s’ intended
destination
.
In the result
,
testimony of the accused explaining the reason and individuality of
their journeys to Richards Bay
,
is open to serious doubt
,
and
,
prima facie
,
appears disingenuous and will be
properly evaluated later
.
THE ACCUSED WHO
TRAVELLED FROM DURBAN
The accused involved
are accused 1, 5, 8, 14, 19, 20 and 26.
Accused 1 testified that
on 2 October 2006 he travelled to Richards Bay to collect money from
,
one Mbuyazi to whom he had sold a motor vehicle
.
His cellphone
records confirm that he did go to Richards Bay
.
Accused 8 did not
testify
,
but accused 20’s evidence was that accused 8
was in the motor vehicle with him when he travelled to Richards Bay
on the day
in question – they were in his BMW
.
The
purpose of accused No 8 was to look at a “Venture”
vehicle with the view to buying it from a certain Simelane at