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2012
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[2012] ZAECMHC 4
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S v Zibi and Others (152/08) [2012] ZAECMHC 4 (1 January 2012)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE HIGH COURT, MTHATHA)
CASE NO.152/08
In
the matter between:
THE
STATE
versus
SIMTHEMBILE
ZIBI
Accused No.1
SAKHUMZI
MVOKO
Accused No.2
ODWA
SITHOLE
Accused No.3
BONGANI
SAME
Accused No.4
MTHUTHUZELI
SISILANA
Accused No.5
JUDGMENT
WHITE
J.
Although this judgment sets out correctly the findings
of the court, it may, due to the limited time the court has had to
prepare
it, reflect certain aesthetic and grammatical deficiencies.
As it will take a considerable time to deliver the
judgment, the court will, so as to avoid unnecessary suspense for the
accused,
at the outset state which accused have been convicted on
which counts, and thereafter give the reasons for its findings.
Another reason for doing so is that if anything happens to me after
today, I would have passed judgment and another judge can then
sentence you. All the accused were acquitted at the close of
the State case on counts 1 and 6. The accused are convicted,
on
the following counts:
Accused 1 (Simthembile Zibi)
Count 2 :
Armed Robbery with aggravating circumstances.
Count 3 :
Armed Robbery with aggravating circumstances.
Count 4 :
Armed Robbery with aggravating circumstances.
Count 5 :
Armed Robbery with aggravating circumstances.
Counts 9-11 :
Three counts of attempted murder.
Count 12 :
Armed Robbery with aggravating circumstances.
Count 13 :
Armed Robbery with aggravating circumstances.
Count 14 :
Conspiracy to commit armed robbery.
Count 15 :
Theft.
Counts 16 and18: Two counts of armed robbery
with aggravating
circumstances.
Count 17 :
Attempted robbery with aggravating circumstances.
Count 20 :
Possession of unlicenced firearms.
Count 21 :
Unlawful possession of ammunition.
Accused 2 (Sakhumzi Mvoko)
Counts 2 and 3 :
Two counts of Armed Robbery with aggravating
circumstances.
Counts 4 and 5 :
Two counts of Armed Robbery with aggravating
circumstances.
Count 9 to 11
: Three counts of
Attempted
Murder
Counts 12 and 13 :
Two counts of Armed Robbery with
aggravating circumstances.
Count 14
:
Conspiracy to
commit robbery
Count
15
:
Theft
Counts
16 and 18 : Two
counts of Armed Robbery with aggravating
circumstances.
Count
17
:
Attempted robbery
with aggravating circumstances.
Counts
20 and 21 :
Unlawful possession of firearms and ammunition.
Accused
3 (Odwa Sithole)
Counts
2 and 3 :
Two counts of Armed Robbery with
aggravating
circumstances.
Counts
4 and 5 :
Two counts of Armed Robbery with
aggravating
circumstances.
Counts
9 to 11 :
Three counts of Attempted Murder.
Counts
12 and 13 : Two
counts of Armed Robbery with aggravating
circumstances.
Count
14
:
Conspiracy to
commit robbery.
Count
15
:
Theft.
Counts
16 and 18 :
Three counts of Armed Robbery with aggravating
circumstances.
Count
17
:
Attempted Robbery
with aggravating
circumstances.
Counts
20 and 21 :
Unlawful possession of firearms and ammunition.
Accused
4 (Bongani Same)
Count
2 :
Armed Robbery with aggravating circumstances.
Count
3 :
Armed Robbery.
do
Counts
20 and 21: Possession of firearms and ammunition.
Accused
5 (Mthuthuzeli Sisilana)
Counts
9 to 11 :
Three counts of Attempted Murder.
Counts
12 and 13 : Two
counts of Armed Robbery with aggravating
circumstances.
Count
14
:
Conspiracy to
commit Robbery.
Counts
16 and 18 : Two
counts of Armed Robbery with aggravating
circumstances.
Count 17
:
Attempted Robbery
with aggravating circumstances.
Count 20
:
Possession of
unlicenced pistols.
Count 21
:
Unlawful possession
of ammunition.
In this case nine accused were originally charged.
They were-
Simthembile Zibi
Sibusiso Jejane
Sakhumzi Mvoko
Odwa Sithole
Bongani Same
Mthuthuzeli Sisilane
Siyabonga Bhekisisa Dike
Mazwi Shabalala
Fuzile Gcina
When the trial commenced the court was informed that for
various reasons four of the abovementioned persons were no longer
being
charged.
Sibusiso Jejane
and
Siyabonga
Bhekisisa Dike
had died, and the case against
Mazwi Shabalala
and
Fuzile Gcina
had been withdrawn.
Only the following five persons were arraigned when the
trial commenced on 26 July 2011. The nick-name of each accused
and
the name of his legal representative, are mentioned in
parenthesis.
Simthembile Zibi (Boyce)
Accused No.1 (Advocate Gabavana)
Sakhumzi Mvoko
(Saki) Accused No.2
(
do )
Odwa Sithole (Oros)
Accused No.3 (Attorney Mankanku)
Bongani Same(Madubula)
Accused No.4 ( do )
Mthuthuzeli Sisilana
Accused No.5 (Attorney Bahle)
Advocate Poswa appeared for the State.
At the outset of this judgment the court wishes to
compliment Messrs Poswa, Gabavana, Mankanku and Bahle on the manner
and thoroughness
with which they carried out their duties in the
case. It is indeed surprising that Advocate Poswa was expected
to conduct
on his own, without any assistance, a long and involved
case, which has run for 86 court days, during which 84 witnesses were
called.
He carried out his task well.
So too can Messrs Gabavana, Mankanku and Bahle be
congratulated on the way they fought in the interests of the
accused. They
left no stone unturned in their efforts to have
the accused acquitted, and the court is satisfied that no one else
could have done
more for the accused than they did. They could,
however, not overcome the overwhelming amount of evidence that
connects the
accused to the various counts.
At the commencement of the trial Advocate Poswa
addressed the court in terms of
Section 150
of the
Criminal
Procedure Act, 51
of
1977
, in which he referred to the
summary of substantial facts which he had previously furnished to the
court and to the accused’s
legal representatives.
A summary of the charges on which the accused were
arraigned is set out hereunder. The date, place, offence
committed, and
allegedly by which accused, is given in respect of
each count. In the counts of robbery the averred aggravating
circumstances
are that before, during and after the robbery, firearms
were used.
Count 1
Robbery with aggravating circumstances
. On
23 April 2007, at Ikwezi Township, Mthatha, all five accused
unlawfully assaulted and with force robbed Loyiso Metu of
a Hyundai
mini truck, registration number DNP 375 EC.
Count 2
Robbery with aggravating circumstances.
On
24 April 2007, at Msengeni Supermarket, Willowvale, all five accused
unlawfully assaulted and with force robbed Desire
Helen Manthe and
Nonjongo Mbeleki of R171 000 in cash, and a Motorola V360 cellular
phone.
Count 3
Robbery with aggravating circumstances.
On
24 April 2007 at Msengeni Supermarket, Willowvalle, all five accused
unlawfully and with force robbed Mveleli Mdutyana
and Mzwandile
Mtekwana of two 9 mm pistols.
Count 4
Robbery with aggravating circumstances
. On
25 May 2007 at Excelsior Complex (Just Right), Mthatha, accused 1, 2,
3 and 4 unlawfully assaulted Wahmeed Mohammed and
with force robbed
him of R5000.00 in cash, and airtime vouchers to the value of R302
585.57.
Count 5
Robbery with aggravating circumstances
. On
25 May 2007 at Excelsior Complex, Mthatha, accused 1, 2, 3 and 4
unlawfully assaulted Mbuyiselo Xishibana and with force
robbed him of
a Nissan Hardbody vehicle, registration number DTD 570 EC, and a
Nokia 1112 cellular phone.
Count 6
Theft
. On 4 June 2007 at Mthatha Plaza,
Mthatha, accused 1, 2, 3 and 4 unlawfully stole a Nissan van motor
vehicle, registration
number DDH 201 EC, from Monjur Rahman Sakar.
Count 7
Attempted robbery with aggravating circumstances
.
On 6 June 2007 accused 1, 2 and 3 at Ntsika Locality, Tsolo,
unlawfully assaulted Zola Tshayingca, Mxolisi Siyephu, Mzukisi
Kawe
and Zamekile Mdudu and with force attempted to rob them of their
money.
Count 8
Robbery with aggravating circumstances
. On
6 June 2007, at Ntsika Locality, Tsolo, accused 1, 2 and 3 unlawfully
assaulted Lusizo Yalezo and with force robbed him
of an Opel Corsa
van, registration number NCW 9175.
Counts 9, 10 and 11
Attempted murder
. On 25 June 2007, on the
road between Port St Johns and Mthatha, accused 1, 2, 3 and 5
unlawfully assaulted and attempted
to kill Kusasa Yantolo, Mxolisi
Siyephu and Maliviwe Mnxakwe, respectively, by firing shots at them.
Count 12
Robbery with aggravating circumstances
. On
25 June 2007, on the road between Port St Johns and Mthatha, accused
1, 2, 3 and 5 unlawfully assaulted Kusasa Yantolo,
Maliviwe Mnxakwe
and Mxolisi Siyephu, and with force robbed them of R250 540.96 in
cash, a LM5 rifle, a 9 mm Norinko pistol and
a Nokia 6111 cellular
phone.
Count 13
Robbery with aggravating circumstances
. On
25 June 2007, on the road between Port St Johns and Mthatha, accused
1, 2, 3 and 5 unlawfully assaulted Linda Mbhalo
and with force robbed
her of a Toyota Hilux double cab, registration number BDX 312 EC.
Count 14
Conspiracy to commit robbery
. During July
2007, at Vuyani Hotel, Libode, all five accused unlawfully conspired
to rob a Fidelity Cash Management Services
motor vehicle on the road
between Engcobo and Mthatha.
Count 15
Theft
. On 9 July 2007, at Mbuqe Extension,
Mthatha, accused 1, 2, 3 and 5 unlawfully stole from Ethel Nozizwe
Gazi, a Mazda motor
vehicle, registration number CYY 548 EC.
Count 16
Robbery with aggravating circumstances
. On
13 July 2007, at Ngqeleni Locality, Tsolo, accused 1, 2, 3 and 5
unlawfully assaulted Lwandile Cengimbo and Andile Somkhebe
and with
force robbed them of two 9 mm pistols.
Count 17
Attempted robbery with aggravating circumstances
.
On 13 July 2007, at Ngqeleni Locality, Tsolo, accused 1, 2, 3 and 5
unlawfully assaulted Lwandile Cengimbo and Andile Somkhebe
and with
force attempted to rob them of their money.
Count 18
Robbery with aggravating circumstances
. On
13 July 2007, at Ngqeleni Locality, Tsolo, accused 1, 2, 3 and 5
unlawfully assaulted Lungisa Madikwane and with force
robbed him of
an Isuzu van, registration number CPS 331 EC, and a Nokia cellular
phone.
Count 19
Possession of prohibited firearms
. During
April to July 2007 all the accused unlawfully had in their possession
fully automatic rifles, to wit an R1, R5, LM5
machine rifles, and a
BXP sub-machine gun, without holding licences to possess those
firearms in terms of the
Firearms Control Act, 60 of 2000
.
Count 20
Unlawful possession of firearms
. During
April to July 2007 all the accused unlawfully possessed 9 mm pistols,
without holding licences to do so.
Count 21
Unlawful possession of ammunition
. During
April to July 2007 all the accused unlawfully had in their possession
ammunition, without holding a licence of a
firearm capable of firing
the said ammunition.
The court will hereunder summarize the major events to
which the charges relate. The accused do not dispute that the
various
crimes were committed, but dispute their alleged
participation therein.
The charges cover ten major events. They are the
following:
Count 1 :
The robbery on 23 April 2007 of a Hyundai
mini-truck at
Ikwezi, Mthatha.
Counts 2 and 3: The robbery on
24 April 2007 at Msengeni Supermarket
of R171000.00 and cellphones from those working in the
Supermarket, and of two 9 m.m. pistols from two guards of the
cash-in-transit
vehicle.
Counts 4 and 5: The robbery on
25 May 2007 at Just Right, Excelsior
Complex, Mthatha, of R5000.00 in cash and R309585.57 in
airtime vouchers from the Manager of Just Right, Waheed Mohammed, and
of
a Nissan Hardbody vehicle from Mbuyiselo Xishibana.
Count 6 :
The theft of a Nissan van, the property
of Monjur Salmar,
on 4 June 2007 at Mthatha Plaza, Mthatha.
Counts 7 and 8: The attempted
robbery on 6 June 2007 at Ntsika Locality,
Tsolo, of money from a cash-in-transit vehicle, and the
robbery of an Opel Corsa.
Counts 9 to 13: On 25 June
2007 and on the road between Port
St Johns and Mthatha a vehicle drove behind a
cash-in-transit vehicle, occupied by Kusasa Yandolo, Mxolisi Siyephu
and Maliviwe
Maxakwe, and shots were fired at it. The money in
it, namely R250540.96, a LM5 rifle, 9 m.m. Norinko pistol, and a cell
phone
were taken. Linda Mbhalo was then robbed of a Toyota
Hilux double cab.
Count 14 :
During July 2007, at the Vuyani Hotel, the accused
conspired to rob a cash-in-transit vehicle between
Engcobo and Mthatha.
Count 15 :
On or about 9 July 2007, at or near Mbuqe Extension,
Mthatha, a motor vehicle was stolen from Ethel Nozizwe
Gazi.
Counts 16-18:
On 13 July 2007, near Ngqeleni locality, in the district of and near
Tsolo,
Lwandile Cengimbo and Andile Somkhebe were robbed of two
9 mm pistols, and Lungisa Madikane was robbed of an Isuzu van motor
vehicle.
Counts 19-21:
These counts relate to the accused possessing firearms and ammunition
in
contravention of the
Firearms Control Act, 60 of 2000
.
All the accused pleaded not guilty to all the charges,
and their legal
representatives informed the court that they would not
be making any
explanatory statements with the pleas.
The defence of each accused is similar – a bare
denial of any involvement in
any of the committed crimes. They contend that
they are innocent and that
anything they did, or are alleged to have done, whilst
in custody, was done
under duress due to the assaults perpetrated on them by
members of the
police force. They aver that all the State
witnesses, for various reasons,
told untruths in the witness box; especially the
policemen who testified.
According to the accused, even the senior police
officers, and those who
had nothing to do with the investigation of the case,
have told a pack of lies.
They aver that the police, young and old, senior and
junior officers, those
from Mthatha and those from other districts, whether
they had anything to
do with the investigation of this case, or not, have all
entered into a
conspiracy to give false evidence so that the accused
can be convicted.
The only evidence that the defence did not contest was
that given by the
victims of the attacks, of how the attacks occured.
The majority of the
victims could, however, not identify the attackers.
The court realizes that although this defence of a
so-called conspiracy by the
police, and the other witnesses, is improbable, it is
not impossible. The
court has therefore not prejudged the case on that
basis, but has instead
considered the evidence of each and every witness, and
decided whether he
or she has been truthful, and, if so, whether the
individual accused
have been implicated in any of the charges against them.
When considering the credibility of the witnesses in
this case there are two
issues that strike the court forcibly. The first
is that the witnesses have had
to testify about issues that occurred four years ago.
It will therefore, due to
the length of time that has lapsed since the events
occurred, not be surprising
if there are discrepancies in the evidence of the
witnesses, especially on
irrelevant or insignificant issues.
The second issue is that if a cross-examiner wishes to
test a witness’
credibility by putting to him a statement he previously
made on the issue,
especially if it was made soon after the events
occurred, that can be a double
edged sword to the cross-examiner. If there are
blatant contradictions on the
main issues in the witness evidence and his statement,
that will naturally
discredit the witness. If, however, there are no major
contradictions on the
main issues, but only contradictions on insignificant or
collateral issues, the
fact that the witness made an identical statement on the
main issue a long
time before testifying will surely both rebut an
allegation that he is not being
truthful, and support his credibility.
The law on this issue is quite clear. Although a
witness may not in
evidence-in-chief refer to similar previous statements
made by him, there is
nothing that prevents a cross-examiner putting such
statements to a witness,
as stated above, at his own peril. Such statements
may also be led to rebut
an allegation of recent fabrication of evidence –
see
The Law of Evidence
in South Africa by Zeffert, Paizes and Skeen, p.408
During the course of the trial the court gave judgments
in two trials-within-
a-trial – see Annexures 1 and 2 hereto. In
the first the court ruled that
statements made by accused 1 and 2 to a Justice of
the Peace are admissible.
In the second the court ruled that a certain
pointing-out by accused 3 is
admissible as evidence, but that statements made by
accused 4 and 5 are not,
due to a lack of proof that they were made freely and
voluntarily. Although
the court wished to reserve judgment in these enquiries
until all the evidence
in the case had been led, the
representatives of the various parties requested
that the court deliver its judgments at the conclusion
of the enquiries.
The first witness for the State was
Luyanda Mabhongo,
who was warned
by the Court in terms of
Section 204
of the
Criminal Procedure Act, 51
of
1977
.
He testified that he is thirty years
old and resides at Slovo Park,
Mthatha and that he was previously an accused in this
case. Whilst being arrested he was shot by the police and his
leg was
amputated. He has been to school up to Standard 5.
He cannot read English. Mabhongo continued that he knows
accused
1, whose nickname is Boysee. He also knows accused 2
and accused 3 (whose nickname is Oros), and accused 4 and 5.
His
evidence on the various counts is set out hereunder.
Count 1: (Robbery with aggravating circumstances –
Ikwezi)
Mabhongo testified that he received a telephone call on
23 April 2007 from either Zuko Mabhongo, or accused 2, or accused 3.
The person told him that they were to commit a robbery on the next
morning and that he, the witness, was to come to Payne location,
which he reached at 6 pm. There, in the room of a shebeen, he
found accused 3, accused 4, Zuko Mabhongo and Prince.
Accused 4
left the room and returned with a young man called KG. Accused
2 then arrived. The witness was told that
the robbery would
take place at Willowvale. They all agreed that they should go
out and look for a vehicle which could
be used in the robbery.
They all then boarded a Microbus, driven by accused 2,
and proceeded to Ikwezi Extension in Mthatha, where there was a
double cab
parked next to a house. All were armed – the
witness with a .38 revolver, for which accused 4 gave him
ammunition.
The witness, Zuko, KG, accused 3 and accused 4
entered the house. The witness heard a gunshot and then Zuko
came out.
Accused 4 followed carrying keys. They then
boarded the double cab. He does not recall its colour or make
as it was
dark at the time. Accused 3 drove the vehicle.
Accused 3 then said the vehicle was not fit for the
journey to Willowvale, and it was dumped near Ikwezi.
Soon after doing so and whilst they were all again
together in the Microbus, they again saw a vehicle next to a
homestead.
Accused 3, Zuko and KG alighted whilst the others
remained in the Microbus. A short while later those that had
left the vehicle
telephoned those who were still in it and informed
them that they had found a vehicle and that they were at Zimbane.
The
Microbus then drove to Zimbane, where the witness and accused 4
remained in it. Later the others returned and they all went
to
Slovo Park to fetch a rifle from Gary Dike. They then returned
to Zimbane where they waited for a man who was to wash
them with
muti. They all slept there.
The next morning, whilst it was still dark, accused 1
and 2 and Sibusiso Jejane, who had a R1 rifle in his possession,
arrived there.
Counts 2 and 3
(Robbery with aggravating
circumstances – Msengeni Supermarket , Willowvale)
Accused 1, 2, 3 and 4, Sibusiso Jejane, Prince, Zuko, KG
and the witness boarded the mini-truck, which had been taken the
previous
day at Ikwezi. All were armed. Jejane had an R1
and R4 rifle in his possession. Others had handguns on their
waists. Accused 2 drove the mini-truck to Willowvale.
They stopped at Mbashe River, as the cash vehicle was to arrive
only
at 12 midday. It was just after sunrise when they stopped.
They then proceeded and they stopped just outside Willowvale.
There they waited for a telephone call from Nofinish Kobo, who would
inform them when the cash vehicle was coming towards Msengeni,which
is a supermarket and wholesale business in Willowvale. They
were going to rob the cash there when the Fidelity cash vehicle
arrived.
The plan was that Zuko and accused 3 would follow the
Fidelity guards into Msengeni Supermarket. The witness and
accused 1
would take all the money from the tills.
When Nofinish telephoned and informed them that the cash
vehicle was on its way, they went to the supermarket. Jejane
and
Prince remained in the vehicle. Jejane was going to drive
their vehicle infront of the cash vehicle, so that it could not
follow them when they fled. When this robbery took
place all the participants were armed; accused 2 with a R4
rifle;
Prince with a R1 rifle; accused 4 and the witness with .38
revolvers. The witness is not sure about the arms of the
other
participants.
The witness and accused 1 entered the supermarket and
stood near the tills. Zuko and accused 3 (Oros) also entered
and stood
near the door of the cash office, which the Fidelity guards
would enter.
Two Fidelity guards entered the cash office of the
supermarket. As they did so accused 3 and Zuko followed them
and then came
out of the cash office with money. The witness
and accused 1 collected the money in the tills. The witness
then heard
a gunshot outside. It was not a handgun. When
the witness went outside accused 3 handed the money he had taken in
the
cash office to the witness, who placed all the money in their
vehicle. When he went outside he saw a Fidelity guard lying
on
the ground. Then the witness heard another sound. Jejane
had collided with the Fidelity vehicle. They all
boarded their
vehicle and left.
After driving the vehicle for sometime, they dumped it
at the side of the road and proceeded further on foot. They
entered
a forest, where they counted the money and shared it in equal
portions amongst them. The witness received ‘twenty
thousand
something’ rands. They left the forest at
different times. They then wanted to hijack a vehicle, but it
drove
away. Shots were fired at it. The witness does not
know who fired the shots. Zuko was shot by accident in his
leg. They then hijacked a private car and after taking Zuko’s
firearm and money away from him, placed him in the car.
Jejane
drove off with him, but after driving a short distance, the car
stopped. Jejane said that possibly the radiator had
been
damaged when they shot at it. They then left Zuko and Prince
behind, and left to find help. The others left too.
Ultimately
Nofinish arrived and picked them up, but his vehicle ran out of
petrol and they had to siphon petrol from another vehicle.
All
then returned to Mthatha.
When the cash vehicle arrived at the supermarket the
witness saw two Fidelity guards go into the supermarket and one
remained outside.
He did not see if they were armed.
However, later in the forest he saw two handguns that had been taken
from the guards.
One was given to Jejane, and the other to KG.
Counts 4 and 5 (Robbery with aggravating circumstance
– Just Right)
Before 25 May 2007 accused 3 telephoned the witness and
told him to go to Just Right in Mthatha and to observe the
situation.
He did so, and then discussed the matter with
accused 3.
On 25 May 2007 the witness met accused 1, 2 and 3,
Jejane and another young man at Just Right. They parked their
vehicle outside
the yard of the premises. Accused 2 and 3
entered the premises, where they chased a person. The witness
and accused
1 then also entered the premises and held those people
up. They demanded money and airtime vouchers. They then
took
money and airtime vouchers, and left. They each received
less than R100. When they committed the robbery they were all
armed with handguns. Accused 2 and 3 went to hijack another
vehicle on the premises.
Count 6-8 (Theft and Robbery – Mthatha Plaza)
The witness does not know about these offences.
Counts 9-13: (9, 10, 11 Attempted murder; and 12 and
13 Robbery with aggravating circumstances – Port St Johns road)
The next robbery the witness committed occurred on 25
June 2007 on the road between Mthatha and Port St Johns. The witness,
accused
1, 2, 3 and 5, Jejane and Gary Dike went to Bizana to rob a
Spar shop. When they abandoned that robbery, Dike suggested
that
they go to Port St Johns and look for a garage so that they ‘did
not sleep without money in their pockets’. They
then went
to Port St Johns. They were travelling in a double cab driven
by Jejane; the witness thinks it was a Toyota.
As they entered
the town they saw a cash-in-transit vehicle of Fidelity. They
all agreed to rob it. They drove to an
intersection and waited
for the cash vehicle to arrive. When it did they followed it in
their vehicle, which accused 2 was
driving. Dike, who was
seated on the front seat, was carrying a rifle. In their
vehicle was the witness, accused 1,
2, 3 and 5, Dike and Jejane.
Dike and Jejane started firing shots at the cash vehicle, which then
‘ran away’.
Accused 2 followed it and rammed it
from behind. It overturned. Accused 2 then rammed it a
second time to open the
safe that contained the money. The safe
did not open and they did not get the money. The witness, with
the assistance
of his colleagues and passers-by, turned the cash
vehicle onto its wheels. They then took a double cab that had
stopped on
the side of the road, and left in it. They travelled
to Qumbu, but when they saw a police road block, they abandoned the
vehicle.
Count 14 (Conspiracy to commit robbery – Tsolo)
The witness testified that in July 2007, at Vuyani
Hotel, Tsolo, they conspired to commit a robbery, which was not
successful.
Accused 2 suggested they go to a place near
Ntywenka, which was near Tsolo, where there was a cash-in-transit
vehicle, and rob
it. They all agreed to rob the vehicle.
Accused 1, 2, 3 and 5, and the witness were present. Fuzile
Gcina was
not present during the conspiracy stage, nor were accused
4, Dike or Jejane.
Count 15 (Theft – motor vehicle – Mbuqe
Extension)
On 13 July 2007 the witness and accused 1, 2, 3 and 5,
Sibusiso Jejane and Gary Dike were together at Vuyani Hotel during
July 2007. They all agreed that a motor vehicle should be
stolen. They all then went to look for a motor vehicle and
found a double cab in a yard in Ikwezi or Mbuqe, which they stole.
They were all arrested on the following day – 14
July 2007.
Count 16 to 18 (Robbery with aggravating
circumstances – Tsolo)
On 13 July 2007 the witness and accused 1, 2, 3 and 5
were travelling from Zimbane to Tsolo in a double cab stolen at
Ikwezi or
Mbuqe. When they realized they were short of one
person, accused 3 telephoned Fuzile Gcina and they picked him up near
Vuyani
Hotel. At the hotel they all bathed in muti that was
brought by accused 2. They then proceeded and on the way
accused
2 telephoned a man by the name of Madoda and requested him to
observe the movements of the cash vehicle they planned to rob.
When Madoda telephoned accused 2 and told him that the cash vehicle
was on its way, accused 2 drove their vehicle behind it.
Accused 1 fired a shot with an R1 at the vehicle. Accused 2
followed it and rammed it from behind. It capsized.
Accused 2 then rammed it again. This time to open the safe that
contained the money. The witness, with the assistance
of
his colleagues and passers-by, turned the cash vehicle onto its
wheels. They then took a double cab that had stopped on
the
side of the road and left in it. They travelled towards Qumbu,
but when they saw the police they abandoned the vehicle
and split
up. The witness and accused 1 reached Qumbu the next day.
This robbery was unsuccessful – the safe
did not open and they
obtained no money.
The evidence of the witness Luyanda Mabhongo can
therefore be summarised as is set out hereunder:
Count 1 : Robbery with aggravating circumstances
–
Ikwezi
– On 23 April 2007 the witness, accused 2, 3 and
4, Zuko Mabhongo, Prince and KG went to Ikwezi, where, in an armed
robbery,
they stole a double cab vehicle. This vehicle, which
is not mentioned in the charge sheet, they then abandoned.
Accused
3, Zuko and KG then left the other accused and evidently
stole the vehicle mentioned in the charge sheet. There is no
evidence
of where, or how, this was done.
Counts 2 and 3
: Robbery with
aggravating circumstances – Msengeni Supermarket, Willowvale
:
On 24 April 2007 the witness, accused 1, 2, 3 and 4, Zuko Mabhongo,
Jejane, Prince and KG went to Msengeni Supermarket, Willowvale,
where, in an armed robbery, they took cash from the store and two
firearms from the Fidelity guards.
Counts 4 and 5:
Robbery with aggravating circumstances – Just Right
:
On 25 May 2007 the witness and accused 1, 2 and 3,
Jejane and another young man committed an armed robbery at Just
Right, Mthatha,
in which they took money and airtime vouchers.
Accused 2 and 3 hijacked a vehicle.
Counts 9-13
:
Attempted murder and Robbery with aggravating circumstances –
Port St Johns Road
: On 25 June 2007 the
witness and accused 1, 2, 3, 5, Jejane and Gary Dike followed a
cash-in-transit vehicle on the Port
St Johns road. Gary Dike
and Jejane fired shots at the vehicle. They then rammed and
overturned it. The robbery
was unsuccessful and they did not
gain any money.
Count 14
:
Conspiracy to commit robbery with aggravating circumstances –
Tsolo
: During July 2007 the witness and
accused 1, 2, 3 and 5 conspired to commit an armed robbery, which was
unsuccessful, at
Ntywenka, near Tsolo.
Count 15:
Theft – motor vehicle – Ikwezi
During July 2007 Mabhongo and accused 1, 2, 3 and 5
stole a double cab vehicle from a yard in Ikwezi or Mbuqe.
Count 16 to 18:
Robbery with aggravating circumstances –
Tsolo
: On 13 July 2007 the witness and
accused 1, 2, 3 and 5 committed an armed robbery on a cash-in-transit
vehicle. The
robbery was unsuccessful and they gained no money.
It was put to the witness in cross-examination that he
was being untruthful because when he was in jail with the other
accused he
demanded that they buy him a motor vehicle. When
they refused to do so, he decided to harm them by giving false
evidence
against them. The witness denied this allegation.
In
cross-examination a confession that the witness had made to a
Magistrate in Mthatha on 31 July 2007 was also put to him and handed
in as Exhibit B. The confession reads as follows:
“
Sometime before the month of June this 2007
at Willowvale we went to commit armed robbery at Msengeni Wholesale.
We were about (9) nine in all. It was
myself, Odwa Sithole; Sakhi Mvoko; Sibusiso; Zuko Mabhongo; Bongani,
KG’s; Prince;
Boyce; Nofinish.
It was during noon about lunch time.
When we got there Nofinish was on guard watching
the Fidelity guard vehicle when it got there. He phoned when
the M/V was
coming. We were gathered near the town outside.
We were travelling in M/V that had been hijacked at Ikwezi Township
on a previous day. Nofinish having phoned to tell us that the
Fidelity guard m/v was there we quickly got inside the shop
we got
inside the shop before Fidelity guard m/v got inside shop.
Odwa and Zuko stood next to office door with
firearms i.e. pistols in their possession
When they grabbed the security we also jumped over
and took the money from the till while they took money from the
office.
Sbu who was the driver was waiting in the car
outside. Prince was standing outside shop carrying an R1 rifle.
Sakhi i.e. Sakhumzi Mvoko was also carrying a
rifle also standing outside.
Sbusiso blocked the Fidelity guard motor vehicle
outside shop.
We took money and we all got into the motor
vehicle and we drove away and ran towards the forest where we left
the car that we hijacked
at Ikwezi on the previous day.
In the forest we walked on our feet and we divided
the money. I got a sum of R25,300-00 as my share as we were
sharing the
spoils.
We remained in the forest until at dark.
From the forest we proceeded to the public road
where we tried to hijack another car and it is then that Zuko got
shot accidentally
by Prince.
We then lifted him and put him in the forest and
we left him there being injured but could not walk. We left
Zuko in company
of Prince.
On the way we phoned Nofinish where there was a
network to come to fetch us and we drove to Mthatha leaving Zuko and
Prince in the
forest at Willowvale.
Prince came on the following day saying he had
left Zuko still in the forest.
When Prince arrived Zuko also phoned me to say he
was on the way to hospital in an ambulance.
That is how the story regarding Willowvale comes
to an end.
With regard to Port St Johns we did not plan Port
St Johns. We had gone to Bizana to rob Spar Wholesale but that
did not materialize
because one guy from Bizana who was also in our
company ran away.
We left Bizana and on our way back we went via
Port St Johns on Gary’s suggestion where we saw Fidelity guard
m/v. We
went up and waylaid it, and we followed it.
Sakhumzi Mvoko who was the driver of our car
bumped the Fidelity guard car with our car and we start
shooting at it.
When Sakhumzi collided with the Fidelity guard
vehicle it capsized.
We then approached and robbed it of the money and
firearms that were there
We then hijacked another car that was on the
public road, and we drove away towards the forest in Port St Johns.
I got a sum of +-R23 000-00 as my share.
It was then in the evening and we left on foot
proceeding towards Ntlaza Hospital, Libode at night.
We phoned a taxi driver to come and fetch us and
he came and picked up at night. I alighted at Misty Mount to
visit my paternal
uncle’s homestead. My friends, Odwa,
Sakhumzi Mvoko, Sbusiso, Gary, Boyce and Mthura all proceeding
towards Mthatha.
That brings us to an end in a story regarding
Bizana and Port St Johns.
On 12 July 2007 we went to Tsolo to commit another
armed robbery.
I was with Fuzile, Sakhumzi Mvoko, Odwa Sithole,
Mthura, I do not recall the others.
We were looking out for Fidelity guard m/v that
was coming down towards us before it got to Tsolo from Maclear
cuttings.
Madoda was also there, he called us to say the
m/vehicle was on the way and when it drove past we followed it and we
fired some
shot-gun shots. We were armed with guns and others
were armed with rifles. We fired some shots at it and Sakhumzi
Mvoko
collided with it and it stopped on the road.
We tried to open it but could not and we lifted it
up and felled it on its side and Sakhumzi bumped it with the m/v on
its top and
it got open but did not get money as we were unable to
open the safe inside the vehicle
We then hijacked another car that stopped on the
scene and left with it leaving our m/vehicle there.
We drove travelling in a direction towards Qumbu
in a gravel road.
On the way we came across a police vehicle and
police shot at us and we abandoned the car and ran on foot.
When we were far from public road Sakhumzi fired
three shots from the rifle. We then ran towards the forest.
Police came to search for us but could not find us
as we were hiding. Police fired some shots but did not find us.
We came out of the forest at dark and we walked on
foot towards Qumbu on a route to Sulenkama.
We left our firearms in the forest before we hitch
hiked in the morning.
We left the rifles in another forest and we parted
ways and we all hitch hiked to Qumbu where we hitch hiked to Mthatha.
I am through with Qumbu and Tsolo issue.
Sometime after Good Friday during this year, I
went on foot to a place known as Hock Mine and a car driven by
Sbusiso came to find
me already there.
It was myself, Sbusiso, Sakhi, Odwa, Boyce and
Loli Pop.
We went to a shop opposite Hock Mine where airtime
is being sold to find staff as it was about to close the shop.
We ordered
them back into the shop there we robbed money and airtime.
Sbusiso, Loli Pop and Boyce hijacked a bakkie from
that shop and got away with it and then abandoned it at Zimbane.
We all used car that was driven by Sbusiso and
travelled towards a certain homestead at Zimbane where we shared the
spoils i.e.
divided money and airtime.
We then parted ways and we went towards our
respective places.
That is all”.
A statement the witness made on 22 June 2008, when he
turned State witness, was also put to him in cross-examination
(Exhibit A).
It reads as follows:
“
Luyanda Mabhongo States in terms of
Section
204
of the
Criminal Procedure Act as
follows:
1.
I am an adult black South African male aged 27
years old residing at Mhaga Location, Upper Xhongora A/A/, Mthatha
but I am presently
detained at Maximum Prison, Mthatha. Prior
my arrest and detention I was not schooling or working.
2.
I know my co-accused that I am presently detained
with in prison. They are my friends and our friendship started
before we
could even get arrested. Before we got arrested we
used to commit crimes together. Some of my friends that were
with
me during the commission of the crimes that I am arrested for
had not yet been arrested. I may also mention that we normally
call each other by alias names.
3.
During April 2007 I was phoned by Sakhumzi Mvoko,
commonly known as Sakhi. He told that we were to go to
Willowvale to commit
robbery on the following day. He went on
to tell me that we were to be joined by other friends of ours at
Payne and Sibangweni.
During the time I received the said call
from Sakhi I was at Payne Location, Mthatha.
4.
On the following day in the morning at about 05:00
Sakhi arrived at Payne Location, Mthatha. He was a passenger in
a maroon
Micro-Bus which was being driven by another young man
unknown to me. Inside the bus there was Sibusiso Jejane
commonly known
as “Sbu”, Simthembile Zibi, commonly known
as Boyce. As I got inside other friends of mine, Odwa Sithole,
commonly
known as Oros, Zuko Mabongo, commonly known as Madubula,
Prince and KG’s real names and surnames unknown to me.
The
driver of the bus then drove off and dropped us at Zimbane where
he made a U-turn.
5.
At Zimbane we walked in the darkness until we
boarded a mini truck white in colour which was hijacked at Ikwezi
Township the previous
day. We got inside it. Sakhi, Same
and Prince got to the front seat and the rest of us got to the back
of the truck.
Sakhi drove taking Willowvale direction and the
truck had no canopy. We arrived at Willowvale during lunch
time.
6.
At Willowvale we waited for one of our friends
known as Nofinish to phone and tell when the Fidelity guards vehicle
was coming to
Msengeni Wholesale to collect money so that we may get
ready because we were to rob the wholesale and the guards.
After some
minutes Oros got a phone call from Nofinish that the
guards were coming. We then took position and we were all armed
with
pistols except Prince who was armed with a rifle. Zuko and
Odwa stood next to the office inside the wholesale, Sbu was at
the
driver’s seat of our truck so that we may block the Fidelity
vehicle, Prince was standing outside, Same was on the doorway
of the
wholesale. Odwa and Zuko grabbed them, the rest of us jumped
over and took the money at gun-point from the tills and
the office.
The pistols from the guards were also taken.
7.
After that we ran to our truck and drove off
towards the forest where we left the truck and walked into the
forest. Inside
the forest we shared the money and my share was
+- R25 300-00. We remained there until it was dark. In
the dark we
went to the gravel road and waited for a vehicle to
hijack. Whilst still there Zuko was accidentally shot by Prince
on the
leg. We then took him back to the forest and Prince
looked after him. We left them there and moved away on foot
until
we again phoned Nofinish who took us to Mthatha. Prince
came back on the following day but before I could ask him about Zuko,
I got a phone call from Zuko reporting that he was being taken to the
hospital.
8.
During the month of June 2007 we myself, Sakhumzi
Mvoko, Odwa Sithole, Boyce, Sbu, Garry Dike, Mthuthuzeli Sisilana
commonly known
as Mthura were at Vuyani Hotel, Sibangweni A/A,
Libode. I came up with an idea that we must go to rob at Spar
Supermarket,
Bizana. Indeed we boarded into a white double cab
which was being driven by Sakhi. It was a stolen vehicle but I
did
have no knowledge as to where it was stolen since, we at times
part ways. On our arrival in Bizana we could not find a certain
friend of ours who stays in that area who was going to assist us
during robbery and we drove taking Port St Johns direction.
9.
Garry suggested that we must look for Fidelity
guards as they normally collect money in Port St Johns businesses and
thereafter
took it to Mthatha for banking. Indeed we saw it in
Port St Johns and waylaid it on the road to Mthatha. After
sometime
the Fidelity guards vehicle appeared and we followed it.
Sakhi bumped it on its back and we started shooting at it as we were
all armed. Although I cannot remember now as to what each of us
was armed with but I was carrying a pistol and the rest of
us were
armed with BXP Semi Automatic Rifle, R1 Rifle, .38 Revolver, R4 and
pistols
10.
Sakhi collided with Fidelity vehicle and it
capsized. We then approached the guards and robbed them money
and firearms, a
rifle and pistol. Having robbed the guards we
then robbed another blue double cab vehicle which was driving past
the crime
scene. We drove it until we got into a certain forest
in Port St Johns where we left the robbed double cab there. I
received +- R23 000-00 share. We then walked until we reached
Ntlaza Hospital in Libode and it was at night. The firearms
that we utilized during robbery and those that we robbed were
contained in one big black bag. Odwa phoned a certain taxi
driver to come and fetch us there. Indeed a certain taxi
arrived and took us back to Mthatha but I alighted at Misty Mount
visiting a relative of mine there.
11.
On the 12 July 2007 we myself, Sbu, Oros, Sakhi,
Mthura, Boyce, Fuzile Gcina commonly known as Fura or Zola, Madoda
commonly known
as Dopler were in Sibangweni planning to go and rob
Fidelity vehicle that transport money from Maclear to Mthatha for
banking.
This idea that there was a robbery to be committed was
from Bongani Same who was not with us then. We were to use a
stolen
white Nissan van. I do not know as to who between
Mthura, Boyce and Sakhi stole the van in question.
12.
Dopler was to check when the Fidelity vehicle
leaves Maclear driving towards Tsolo and phone us. We then
proceeded to Tsolo
and after some time Dopler phoned reporting that
the Fidelity vehicle was coming and we drove the stolen van until we
saw it.
I was armed with a pistol and rest of us were armed
with R4, R1, .38, pistols, BXP. We drove behind it until
Sakhumzi
collided with it. Some shots were fired by
us to the guards at gun point and robbed them two pistols. We
tried to open
it’s safes but failed. We then hijacked
another vehicle a double cab and drove away leaving the stolen van at
the crime
scene. Sakhi drove towards Qumbu and on the way we
met with police and then drove until we got inside the forest.
During
the night we came out of the forest and hitch hiked to
Mthatha.
13.
Also during 2007 after Good Friday it was myself,
Sakhi, Oros, Boyce, Bongani Same, Sbu and another friend of mine
whose real name
and surname are unknown to me but he is commonly
known as “Loli Pops”, we planned to rob airtime shop at
Excelsior
Complex, Mthatha town. On that date there was a Honda
Ballade brown in colour which was being driven by Sbu. We then
proceeded to the said place. I still recall that I went there
on foot and re-joined my friends in the crime scene.
We arrived
whilst the shop was about to close and held up at gun point the
workers. We then robbed money and airtime.
Whilst leaving
the scene myself, Loli Pops boarded in the Honda Ballade being driven
by Sbu whilst Odwa, Sakhi, Boyce and Bongani
hijacked another vehicle
(a van) also in the same complex. They then abandoned it at
Zimbane. Since we had a small
amount of money, I do not
remember as to how much was my share but I got R10, R15 air time
vouchers from MTN and Vodacom.
14.
Also during July 2007 I was myself, Boyce, Oros,
Garry, Sbu, Dopler and Sisilana. We planned to rob Fidelity
vehicle that
was to carry money from Engcobo to Mthatha for banking.
I did our planning at Sibangweni and it was on a Sunday. Few
days after we planned we indeed proceeded to the Mthatha-Engcobo
Road. Dopler as usual was to look for the Fidelity
vehicle in Engcobo Town and report or phone when it is leaving
Engcobo to Mthatha and it that time we were at Baziya, Mthatha.
After some time Dopler phoned Sakhi reporting that the Fidelity
vehicle was coming but before we could position ourselves properly
it
drove past at a high speed and we missed it. Even on the day I
was armed with a pistol and the rest of us were armed with
pistols,
rifles, BXP and R4. During July and August police arrested us
on different spots and I was shot at by the police
during arrest and
lost my leg.
15.
All the people that have mentioned above were with
me in the incidents that I have just mentioned. I do not have
any reason
to lie or falsely implicate them in the incidents.”
After giving evidence-in-chief and being cross-examined
in this court on 26
August 2011, the witness was, at the request of the defence, recalled
for further cross-examination on 25 October 2011.
Luyanda Mabhongo has therefore made the following
statements and given evidence on the following dates:
Confession : 31.7.2007.
Statement on becoming a Sate witness : 22.6.2008
Evidence in court : 26.8.2011.
Further evidence : 25 October 2011.
Counsel for the accused have submitted that due to the
contradictions between the evidence that Mabhongo gave in court, and
the
facts mentioned in the statements he made, Exhibits “A”
and “B”, his evidence must be rejected by the court
as
being untruthful.
The court is fully aware of the possible dangers lurking
in the acceptance of the evidence of Mabhongo, who is an erstwhile
accused
who has turned State witness. The court is aware that
it must be extremely careful about accepting his evidence as he may
be testifying just to save his own skin.
The alleged contradictions raised by Counsel for accused
1 an 2, Advocate Gabavana, are set out hereunder:
Whereas in his evidence Luyanda told the court he
resided at Slovo, in Exhibit “A” he stated that he
resides at Mhaga
Location, upper Xhongora, Mthatha. The
witness answered the allegation by stating that although he resides
at Slovo, his
home is at Mhaga. It is common knowledge that a
Xhosa will often, when asked where he resides or comes from, give
the address
of his tribal home. The court therefore finds no
substance in this so-called contradiction.
Mr Gabavana then contended that there was a
contradiction as to when the witness and the accused became
friends. Mr Gabavana,
however, abandoned this alleged
contradiction.
The next alleged contradiction is that whereas in his
evidence the witness had said that he was not sure about his age, in
his
statement he said he was 27 years of age. Mr Gabavana
conceded that in his evidence the witness gave his date of birth.
There does therefore not appear to be any contradiction in this
respect and Mr Gabavana seems to have withdrawn also this alleged
contradiction.
The next alleged contradiction is that whereas the
witness stated in his evidence-in-chief that prior to the first
robbery at
Ikwezi he received a telephone call from either accused 2
or 3, or Zuko, in paragraph 3 of Exhibit “A” he stated
that it was accused 2 who telephoned him. In his evidence the
witness explained the contradiction by stating that because
these
events occurred a long time ago - in 2007 - he is now not sure of
the person who telephoned him. Furthermore, the
fact that all
three persons he mentioned had his cellphone numbers, added to his
present uncertainty. The witness’
explanation seems not
only to clarify the reason for the contradiction, but also to
confirm his honesty. Because he was
unsure of who telephoned
him, he testified to that effect as he was not prepared to name one
person as he might then have been
misleading the court. The
witness can therefore not be condemned for this contradiction.
Whereas in Exhibit A he stated that he received a
telephone call from accused 2 at Payne, in evidence he testified
that he received
it at Slovo. This appears to be a totally
inconsequential contradiction.
In Exhibit A the witness stated that he arrived at
Payne at 5 am, but in his \evidence he testified that he arrived at
Zimbane
at 4 am. The witness stated that he was not sure of
the boundaries of Payne and Zimbane. One again, the
contradiction
appears to be totally inconsequential.
The next alleged contradiction is that whereas the
witness in his evidence stated that he did not call Luzuko Mabhongo
by his
nickname (Zuks), he in Exhibit “A” stated as
follows:
“
As I got inside other friends of mine Odwa
Sitole, accused No.3, commonly known as Oros, Zuko Mabhongo, commonly
known as Zuks,
Bongani Same, commonly known as Madubula, Prince and
KG’s real name and surnames unknown to me”
The court finds no contradiction in these statements.
The witness stated that he does not know where Luzuko
Mabhongo is at present. He knows that he was arrested and he
expected
him to be one of the accused. It was then put to him
that Luzuko and Fezile Gcina are presently facing similar charges to
those that the accused are facing, in the Regional Court,
Butterworth. The witness stated that he has no knowledge of
that development.
The next alleged contradiction is that whereas the
witness said in Exhibit “A” that he was dropped off at
Zimbane
Location, he later said he was dropped off at Payne.
If there is such a contradiction, which Counsel for the State,
Advocate
Poswa, disputes, the witness clarified it by answering that
he does not know where Zimbane or Payne commence, or end.
The next alleged contradiction was that whereas he had
stated in Exhibit A “. . . . we were all armed with pistols,
except
Prince”, in his evidence he testified that accused 2
was armed with a R4 rifle (261 et seq). This is a disturbing
contradiction, but the witness maintained it was due to Mdepha not
having recorded the witness’ statement correctly.
In his evidence the witness stated that at Willowvale
accused 2 fired a shot at the security guard, but there is no
mention of
that incident in Exhibit A. The witness states that
he was not questioned about this aspect when he made Exhibit A.
Whereas Exhibit A reads ‘whilst still there (in
the forest at Willowvale) Zuko was accidentally shot by Prince’,
the
witness testified that he does not know who shot Zuko.
This is a clear contradiction. The witness, however, states
that he did not tell Mdepha that Zuko had been shot by Prince.
The witness testified that he did tell Mdepha the date
of the robbery at Just Right, although there is no mention of it in
Exhibit
A.
Counsel for accused 3 and 4, Attorney Mankanku, also put
various alleged contradictions between the witness’ evidence
and
the exhibits to Mabhongo. They are set out hereunder.
For the sake of continuity and easy reference the Court will continue
to number the alleged contradictions numerically.
Whereas the witness stated in his evidence that he was
arrested on 14 July 2009, he stated in Exhibit B that he was
arrested on
13 July 2009. The witness contends that he told
the Magistrate that he was arrested on 14 July 2009. Even if
this
contradiction did occur, it is totally inconsequential.
Mr Mankanku then repeated the contradiction referred to
by Mr Gabavana in (4) above. The witness explained that his
uncertainty
in the witness box on this issue was due to the lapse of
time since these events occurred. It is interesting to note
that
later in cross-examination (p362) Mr Mankanku put to the
witness this exact possibility, namely, that due the lapse of time
the witness could not remember exactly what had happened.
Mr Mankanku then repeated the contradiction referred to
in (7) above, for which the witness gave an acceptable explanation.
Mr Mankanku put to the witness - for example on p.347
of the record - that certain matters that he mentioned in his
evidence are
not mentioned in exhibits A and B. This is not
surprising as the examination of the witness in court must have been
more
searching than that of the persons who recorded his statements.
In the statements the witness stated that he did not
know who shot Zuko, but in his evidence he stated that it was Prince
who
shot him. The witness does not know why there is this
contradiction, but he believes he told Mdepha the same as he said in
Court.
The court has considered what the defence has referred
to as contradictions, that are set out above, and has made the
following
findings concerning them:
The court finds no substance in the alleged
contradictions in paragraphs 1 to 9 and 14 to 17 above, either
because there is
no contradiction or, if there is, it is totally
inconsequential;
The contradictions in paragraphs 10 to 13 and 18 could
well be due to the lapse of time, or that Mdepha did not question
the
witness on these issues, or did not record properly what
Mabhongo had said.
When deciding whether the Court can accept, or must
reject, Mabhongo’s evidence it must be borne in mind that he
has over
a long period made two written statements and given evidence
on two separate occasions. The first statement was made in
Mthatha
on 31 July 2007, Exhibit B, and the second to Mdepha on 22
June 2008, Exhibit A. Then he testified before this court on 26
August 2011, and was re-called for further cross-examination on 25
October 2011. The statements were therefore made, and
the
evidence given, over a period of four years, and they describe in
detail the events that occurred in six separate robberies
throughout
Transkei, and a conspiracy. Those at Ikwezi (count 1), Msengeni
Supermarket (counts 2 and 3), Just Right, Mthatha
(counts 4 and 5),
Port St Johns road (counts 9 to13), Vuyani Hotel (count 14), Mbuqe
Extension (count 15) and Ngqeleni Locality,
Tsolo (counts 16 and
18). In both his statements and his evidence Mabhongo’s
description and detail of these robberies
is identical and, more
importantly, so too is the naming of the persons who took part
therein. There are indeed no major
discrepancies.
Considering the lapse of time between some of the statements, and the
vast number of facts the witness had
to describe, it would be strange
if there were no discrepancies. It is amazing that in all these
statements the witness repeated
accurately the main events, and those
who committed them.
It is difficult to understand why the defence had
Mabhongo re-called for further cross-examination on 25 October 2011.
He
was then once again cross-examined at length by both Messrs
Gabavana and Mankanku. He handled their questions with ease,
and this appearance simply confirmed the
prima facie
opinion the court had formed when he testified previously. It
seems that the cross-examiners believed that he would deny
that when
he was arrested, he was shot at twice – once when he was in a
motor vehicle and once when he was injured.
When, however,
Mabhongo readily admitted that this had happened, it seemed to take
the wind out of the cross-examiners’ sails.
It must also be borne in mind that the robberies and
other crimes described by Mabhongo in his evidence have been proved,
by the
evidence of the victims of those crimes, to have occurred.
The main issue for the court to decide is therefore whether the
witness has correctly identified the various accused who he alleges
took part in the offences, and whether they did in fact do
so.
This in turn will depend on whether the court finds that he is a
truthful, or untruthful witness.
The Court has considered the following factors when
deciding whether Mabhongo was a truthful witness, and whether it can
accept
his evidence.
Mabhongo made a good impression when testifying.
He was quiet and reserved in the witness box, and was never hostile
or
intent on making an impression on anyone. He was at times
verbose, but this seems to be a common fault of rural people when
testifying. He also on occasions did not answer directly the
question asked, which could possibly be attributed to his
speaking
through an interpreter. These occasional faults did certainly
not appear to the court to be due to his wanting
to mislead the
court. On the contrary, he appeared to be an honest witness
who was simply describing what he knew.
He did not implicate all the accused under a blanket
allegation of involvement, and therefore guilt, on all the counts.
This one would have expected if he were being untruthful, as the
defence has contended, and was intent on implicating the accused.
He rather stated which accused specifically were involved in each
offence, and openly stated that certain of the accused were
not
present when certain of the offences were committed.
He did also not testify on all the counts, and readily
stated that he knows nothing about counts 6 – 8. If he
were
being dishonest, and was manufacturing evidence to implicate
the accused because they did not give him a vehicle, as the defence
has contended, he would surely have implicated all the accused on
all the counts.
His evidence that the robberies, etc, occurred has been
corroborated by the evidence of the victims who have testified how
and
when the crimes were committed.
His evidence has also been corroborated, especially
concerning the identity of the accused, by the statements, Exhibit A
and B,
that were put to him in cross-examination. The court
has checked the contents of the statements and the evidence that
Mabhongo
gave, against one another, and has found no major
contradictions in them concerning either the commission of the
various offences,
or the identity of the accused persons who
committed the offences.
The evidence of the undermentioned witnesses has also
confirmed that the accused persons that Mabhongo has mentioned in
his evidence
were in fact involved in the commission of various of
the crimes.
Counts 2 and 3
The evidence of Kobo and the confessions of accused 1
and 2, and the pointing out by accused 3, corroborates the evidence
of Luyanda
Mabhongo on these two counts.
Accused 4 and 5
Warrant Officer Mdepha testified that he found in the
room where he arrested accused 1 and 2 the airtime vouchers that had
been
stolen from Waheed Mohammed of Just Right, Mthatha.
When Mbuyiselo Xhishibana testified he identified
accused 3 as one of the persons who robbed him of his Nissan Hardbody
vehicle
at Just Right, Mthatha.
So too do the confessions by accused 1 and 2, and the
pointing out by accused 3, corroborate his evidence on theses counts.
Counts 9-13
Maliviwe Ngqukumbana stated that on the night of the
robbery he
received a telephone request
from accused 3 to fetch him and his
vehicle, which had broken
down. When he went to the scene he
found accused 2 and 3, and five
others there.
Inspector Mjacu lifted the fingerprint of accused 3 from
a Coca-Cola bottle in the robbers’ vehicle.
Olwethu Feke testified that accused 1 came to his home
carrying a bag containing,
inter alia
, 3 firearms. The
confessions and pointing out by the accused also corroborate
Mabhongo’s evidence on these counts.
Count 14
Madoda Madikiza confirmed that accused 2, 3 and 5 met at
Vuyani Hotel in July 2007. The following day they again met
there
and then accused 1, 2 and 3 were present.
Counts 16-18
Andile Somkhebe testified that on 13 July 2007 the
robbers had taken his 9 mm pistol, Exhibit 11, which was later found
in a motor
car in which accused 5 and others were travelling.
The record is replete with examples of the witness’
honesty – see, for example, pages 184, 202 and 271.
Another
example hereof is that when testifying about the robbery at
Msengeni Supermarket, he stated that he did not see anyone robbing
the victims of two firearms, but only saw the firearms in the
forest.
The witness is not educated – he attended school
to standard 5 – and he cannot read English. The court is
satisfied
that he could not have related the same story, with its
detail, in exhibit B, then in Exhibit A, and lastly in his evidence
in
this court, with the degree of exactitude he has shown, unless he
was testifying to events in which he was personally involved.
There would otherwise have been major contradictions in his
statements relating to both the events and the identity of those
participating in them. There were no such major contradictions
in the statements he made and the evidence he gave.
Due to the long lapse of time between the statements,
it would be surprising if there were no contradictions, especially
on minor
or insignificant issues.
The court also had to consider the so-called
contradictions between the witness’ evidence and the
statements he made.
The court made the following findings in
respect of the 16 alleged contradictions specified above:
The court finds no substance in the alleged
contradictions in paragraphs 1 to 9 and 14 to 17 above.
The contradictions in paragraphs 10 to 13 and 18 could
well be due to the lapse of time, or that Mdepha did either not
question
the witness on these issues, or did not record correctly
what Mabhongo had said.
As is stated above, the court has considered the
co-called contradictions in Mabhongo’s evidence and found them
to be either
non-existent, or insignificant.
The court has, after viewing Mabhongo in the witness
box, and considering all the above factors, come to the conclusion
that he
was an excellent and truthful witness, and that the court has
no doubt that it can accept his evidence. He has correctly identified
the persons who took part in the robberies. Furthermore, that
he has not done so simply to save his own skin.
Xolile Mdepha
testified that he is a Warrant
Officer in the South African Police Services and a member of the
Organised Crime Prevention Unit,
Mthatha. He is the
Investigating Officer in this case.
On 25 June 2007 he proceeded to the scene of robbery on
the Mthatha/Port St Johns road (counts 9-13), where he met the three
security
guards who had been involved in the robbery. He
requested Warrant Officer Mjacu to take photographs of the scene.
The
latter did so (Exhibits E1-24), and also lifted finger prints
from the double cab and from a Coca-cola bottle that was found in
that vehicle. The vehicles were towed from the scene, but the
witness does not know what happened to the Coca-Cola bottle
after the
finger prints were lifted from it.
The witness testified that he found that the
modus
operandi
of two cases of robbery at Tsolo were similar to the
first one he investigated on the Mthatha/Port St Johns road.
On 14 July 2007 the witness went to a room in Mahaku
Township, Kokstad, where he found accused 4 and his girlfriend on a
bed.
He then, after having given him the required warning,
arrested accused 4. He found, under the pillow on which the
accused
was sleeping, a .38 revolver (Exhibit 7), which contained six
rounds of ammunition. In cross-examination, however, the
witness
conceded that whereas he had stated in examination-in-chief
that there were only the accused and his girlfriend in the room,
there
were in fact three people in the room. He denied that he
found Exhibit 7 under the bed.
On 17 July 2007 the witness arrested accused 1 and 2 in
Margate. In the room where they were arrested he found a large
cardboard
box containing airtime vouchers. He also found a 9 mm
Norinco pistol and 9 mm berretta pistol in the BMW motor vehicle of
accused 2 (Exhibits 8 and 9). One firearm had 5 rounds of
ammunition in it, and the other 8 rounds. He later handed
the
airtime vouchers to Waheed Mahommed, who claimed the vouchers to be
those that had been robbed from him on 25 May 2007 (count
4).
On 18 July 2007 the witness was taken by accused 1 to
the home of Olwethu Feke where he found the firearms and magazines,
Exhibits
1, 2, 3, 4, 5 and 6, and the ammunition, Exhibit 13.
Constable Solomons arrived and took photographs (Exhibits J1-16) of
where the firearms were found.
On
7 August 2007 the witness arrested accused 5. He was a
passenger, with three others, in a motor vehicle. The witness
searched the vehicle and in it he found three firearms.
Exhibits 11 and 12, and one that has since then been mislaid.
They contained 11 and 3 rounds of ammunition, respectively. As
Andile Somkhebe testified that Exhibit 11 was taken from
him
in the robbery referred to in count 16, this evidence connects
accused 5 to that robbery. In his evidence the witness
stated
that he had been unable to trace the complainants in counts 1 and 6,
Loyiso Metu and Mr Sakar, respectively.
In cross-examination it was put to witness that he had
“heavily assaulted” accused 2. Also that accused 2
was
granted a court order interdicting the witness from doing so
(Exhibit S). It was also put to the witness that he again
assaulted
accused 2 after the interdict was granted, and that he took
the accused’s clothes and a grinder. The witness denied
these allegations, save that he admitted that he had taken the
grinder. He did so because the accused was using it to grind
the serial numbers off firearms.
It was put to the witness that accused 1 was not present
when Feke pointed out the firearms. The witness denied this
allegation.
The witness testified that of the original nine accused
two – Sibusiso Jejane and Gary Dike - had died, and that
charges were
withdrawn against two of the other accused.
He testified that the serial number of Exhibit 8 is
49204424, that of Exhibit 11 is 49204451, and that of Exhibit 12 is
J67390.
In cross-examination it was put to the witness that he
had given a different registration number of the vehicle of accused
2.
The witness agree d that that was possible, but stated
that it was easy for persons to change their number plates.
It was also put to the witness that he did not make
Samke, the accused’s girlfriend, a witness because he had
heavily assaulted
the accused when he was arrested. The witness
denied this allegation.
The witness admitted that an interdict, not to assault
those in their custody, was issued against all the policemen at
Mthatha Central
Police Station.
The witness denied that he had taken, and worn, the
leather jacket of accused 2, and that he assaulted him after he
arrested him.
He admitted that he had confiscated a grinder
from the homestead of accused 2, as it was being used to grind serial
numbers from
firearms.
It was also put to the witness in cross-examination that
accused 1 and 2 deny that they were involved in any offence.
Also
that the accused 1 did not point out the home of Olwethu Feke to
the witness, and that he, accused 1 was not present when the firearms
were found at Feke’s home. The witness denied these
allegations and stated that it was accused 1 who pointed out Feke’s
home to him. He did so freely and voluntarily.
In cross-examination it was also put to the witness that
accused 3 and 4 had nothing to do with the offences the witness has
referred
to. Also that the witness found the firearm, Exhibit 7,
under a bed. The witness denied this allegation.
The witness stated that accused 1 pointed out Feke’s
home to the police. He did so freely and voluntarily and
without
undue influence, and was not induced to do so.
Mkhululi Kobo, whose nickname is Nofinish, was warned by
the court in terms of
section 204
of the
Criminal Procedure Act, 51
of 1977
. He testified that he knows accused 1, 2 and 3, but not
accused 4 and 5. The nickname of accused 1 is ‘Boyse’;
that of accused 2 is ‘Sakhi’, and that of accused 3 is
‘Oros’.
In 2007 he conducted a taxi business at the Golden Egg,
Mthatha.
On the morning of 23 April 2007 the witness received a
telephone call from accused 3, who asked the witness to come and see
him.
The witness went to see accused 3 at Zimbane. There
accused 3 informed him that he would like to see a traditional healer
in Willowvale, and enquired how much the witness would charge to take
him there. The witness agreed to do so.
When the witness and accused 3 left for Willowvale, the
latter instructed him to pick up a young man, which he did. He
then
drove to Ultra City, where he filled up with petrol. After
leaving Ultra City he picked up another young man. They were
then four in the motor vehicle and they drove to Msengeni Wholesale
in Willowvale. The three entered the wholesale shop and
the
witness followed them to buy a cool drink.
They all then left the wholesale store and drove to a
butcher shop, where they had a braai. Accused 3 then asked the
witness
how much he makes per day, and he replied “R300”.
Accused 3 told the witness to relax as they would pay him the
R300.
On the accused’s instruction they then left the
butchery and went to a taxi rank in Willowvale, where the three
passengers
left the vehicle. They returned an hour later and
told the witness to go home.
On the way, before they had left Willowvale, they saw a
Fidelity kombi approaching them. Accused 3 told the witness to
follow
the kombi because they wanted to see where the kombi would
stop to pick up money. Accused 3 said they wanted to take the
money from it, but were not going to do it there and then. The
witness then followed the kombi. It stopped at four spots
and
the fifth one was at Msengeni Wholesalers. The three passengers
then alighted and entered Msengeni Wholesalers.
When they came
back they said he must go home.
On the way home accused 3 asked the witness if he would
be busy the next day. He then told the witness that he wanted
him
to keep watch on the Fidelity vehicle the next day and to tell
him by telephone when it came. If the witness was prepared
to
do so, he would give him R10 000.00. He agreed to do so.
The following morning accused 3 telephoned the witness
and reminded him to go and keep a look-out for the Fidelity
cash-in-transit
vehicle. The witness told him that he did not
have fuel for his vehicle, and accused told him to go to a certain
address
in Zimbane where he would be given money for that purpose.
The witness went there and was given R150.00 by a lady for petrol.
The witness then drove to Willowvale where he waited for the kombi.
It arrived at about 2 pm. He then telephoned accused
3 and told
him the kombi had just passed him. He was then about 5
kilometres from Willowvale.
Later accused 3 telephoned the witness and said he must
pick them up. The witness borrowed a vehicle and, on the
instructions
of accused 3, went in the direction of Elliotdale where
he picked him, accused 1 and 2, and others up. Those seated at
the
back were carrying bags and those on the front seat ordered the
witness to move the seat forward and they placed a rifle behind
the
seat. Odwa then gave him the money he had promised him.
The witness’ vehicle then ran out of fuel and they
had to
siphon fuel from another vehicle. When the witness counted the
money he had been given it was only R8 000 rand.
The witness
drove to Mthatha where he filled up with petrol. He then
dropped off all those in the vehicle in Mthatha.
When he
dropped off accused 2, he took his bag and the rifle he had placed
behind the front seat.
On the following day accused 3 telephoned the witness
and asked him to come and pick him up. The witness did so and
also picked
up accused 2. From there they went to accused 1.
The witness heard them discussing the man who had been shot and left
behind on the previous day. They then asked the witness to go
and fetch that man, but he refused to do so.
In cross-examination the witness admitted that he had
made a statement, Exhibit C, to the police during July 2007 about the
events
that occurred on 23 and 24 April 2007.
When cross-examining the witness, Advocate Gabavana, who
appears for accused 1 and 2, did not put to him the alleged alibi of
where
accused 1 was on 23 and 24 April 2007. One would have
imagined that that would have been the first thing he would have put
to Kobo in cross-examination, if it had been true.
Gabavana did, however, put the following question
(p.681) to the witness:
“I put it to you that after the sale of a motor vehicle, Ford
Laser, between you and accused 1, there was a problem
because
you ran away without having paid for that motor vehicle”
This is contrary to the evidence that accused 1
subsequently gave. Accused 1 testified that he had sold the vehicle
to Kobo, who,
when he could not pay the full amount, returned the
vehicle to the accused. Because accused 1 had not yet refunded
the full
amount that Kobo had paid to him, Kobo testified against all
the accused. There was never any mention of Kobo having run
away. On the contrary, he was demanding payment of his money
from accused 1.
When considering Kob’s evidence there are four
things that must be borne in mind. They are-
A statement, Exhibit C, made by the witness in
July 2007 i.e. soon after the events occurred, is identical on the
main
issues to the evidence the witness gave in court. They
are that he accompanied accused 3 to Willowvale on 23 April 2007;
that on 24 April 2007 he telephoned accused 3 and told him that the
cash vehicle was on its way; that accused 3 telephoned
him and
asked him to fetch them that night and that he borrowed a bakkie
and did so. Lastly, that the next day they asked
him to fetch
an injured member and he refused to do so.
Luyanda Mabhongo corroborated a great deal of this
witness’ evidence.
Kobo had no axe to grind with the accused and he
appears to have been an honest witness – see, for instance
p.580, where
he admits that he knew that he was conveying people
who were going to rob.
He was consistent in his evidence e.g. when he met the
accused and when he saw them after he picked them up
Whereas Advocate Gabavana launched a vehement attack on
the evidence of Luyanda Mabhongo, he hardly mentioned Kobo in his
address.
All that he submitted was that the court cannot accept
the evidence of a witness who testified that he had travelled with
accused
2 (Sakhi), whom he had previously seen in the company
of accused 3, from where petrol had been drained from another vehicle
into his, to the garage, without recognising him. The court was
at first also alarmed at this evidence of the witness.
On
closer consideration, however, the court realized that it could be
true. It must be borne in mind that the witness himself
gave
this evidence in examination-in-chief; he knew accused 2 only by
having seen him in the company of accused 3; it was after
8 pm, and
must therefore have been dark, when they travelled in the vehicle;
and as soon as he recognised accused 2 at the garage
he asked him if
it was he.
When the court weighed up this one possible blemish
against the positive aspects of Kobo’s evidence, it came to the
conclusion
that it could accept it as being the truth. The
positive aspects are numerous: he gave his evidence well, he
had no
axe to grind with the accused and he appears to be an
independent witness; his evidence is corroborated by that of Luyanda
Mabhongo
and his own previous statement, Exhibit C. Kobo did
also not stand to gain anything by the statement. Kobo’s
evidence has such a ring of truth about it that it would be difficult
to reject it as untruthful.
The court therefore disagrees with Gabavana’s
submission that Kobo’s evidence be rejected as being
untruthful.
The court is satisfied that it can, after hearing the
witness in the witness box, and due to the abovementioned
corroborating factors,
accept his evidence.
Olwethu Feke testified that he is 30 years old and that
his home is at Sibangweni Locality, in the district of Libode.
He
knows only accused 1, whose nickname is Boy-boy. The witness
knows accused 1 because he had a relationship with the witness’
sister, from which a child was born.
Accused 1 arrived at the witness’ home on a Sunday
during July 2007, carrying a big black bag. He said the bag
contained
firearms and that he wished to leave the bag with the
witness until he fetched it again. The witness and accused 1
then went
to a shack on the witness’ premises, where they both
took the firearms out of the bag. There were three firearms in
the bag – two big and one middle-sized. The latter
firearm was wrapped in a cloth and placed in the shack on the
premises.
They then went into the garden where accused 1 dug
two holes with a piece of wood, into which he placed each of the
remaining firearms,
after having wrapped them separately in pieces of
plastic.
On 18 July 2007 accused 1 returned with Warrant Officer
Mdepha of the South African Police. Accused 1 then pointed out
Olwethu
to Mdepha as the person who was hiding the firearms.
The witness then showed Mdepha where the three firearms, Exhibits 1,
2 and 3, and the magazines, Exhibits 4, 5 and 6 were hidden.
When he did so, accused 1 was next to him and photographs were
taken
by the police, who then took the firearms. The witness saw
ammunition only when it and the firearms were taken away
by the
police.
In cross-examination it was put to Feke that he was
falsely incriminating accused 1, who never brought firearms to his
home, because
the latter disputed paternity of the child born to his
sister. The witness denied this allegation and stated that he
allowed
accused 1 to leave the firearms at his home because accused 1
was in love with his sister, and had at one stage stayed with him.
He did not report the matter to the police because if he had done so
he would be placing himself at risk because accused 1 was
then still
at large. The suggested animosity of the witness to the accused
is refuted by the fact that he not only assisted
him to hide the
firearms, but also that he visited him in jail after he was arrested,
and took him food and tobacco.
Feke testified that he was never charged because accused
1 confirmed that the firearms were his.
The photographs that the police took are Exhibits J1-16.
The witness made a good impression on the court.
He was forthright in his answers to the questions put to him.
He also appeared to be honest. So, for instance, he did not
think that accused 1 had permission to be in possession of the
firearms, and he knew that accused 1 was in unlawful possession of
them. Also that he visited accused 1 in jail after the
police
informed him that he would have to testify. Furthermore, that
he, the witness, helped accused 1 hide the firearms.
The witness’ evidence was corroborated to a great
extent by that of Warrant Officer Mdepha, who testified that it was
accused
1 who took him to the witness’ home. How else
would he, Mdepha, have known to seek firearms there? Feke’s
evidence is also supported by that of Maliviwe Ngqukumba, who
testified that on 25 June 2007 accused 2 and 3, and five other men,
were in possession of a bag in which he saw two rifles.
Penrose Mzenzi
testified that he is a Warrant
Officer attached to the Organised Crime Unit, Mthatha.
On 18 July 2007 he arrived on the scene in Margate after
accused 1 and 2 had already been arrested. The accused were
standing
next to a BMW motor car. The police then searched the
vehicle and found two firearms in it. All the police then
returned,
with the two accused, to Mthatha.
When they arrived in Mthatha, the witness saw that
Warrant Officer Mdepha was in possession of three firearms –
two R5 rifles,
Exhibits 2 and 3, and a BXP rifle, Exhibit 1.
A flight was then arranged to fly accused 2 to Cape
Town, to show the police the whereabouts of accused 3. The
witness and
other policemen then flew with accused 2 to Cape Town.
In Cape Town accused 2 led them to a house at 20964
Bloekombos Street, Pambela Location, Kraaifontein. When they
there opened
the door, accused 3, who was in the room, tried to jump
out of the window, but was prevented from doing so, and arrested.
The witness, after identifying himself, informed accused 3 of the
charge on which he was being arrested, and of his legal rights.
They were all then directed by accused 3 to 48 Ngqangqolo Street,
Litho Park, where he stated he was living with his elder brother.
There they searched the belongings of accused 3 and found a 9 mm
pistol, Exhibit 10, which was marked ‘CZ’. They
also found many Vodacom and MTN airtime vouchers there.
In cross examination it was put to the witness that
accused 3 could not have pointed out his brother’s room to the
police
as he was at the time blindfolded with sellotape. It was
also put to the witness that when accused 3 was returned to Mthatha,
he was assaulted by Mdepha, Maqhubela and the witness by stamping on
his head and body, and striking him with a metallic number
plate.
The witness denied these allegations.
A statement made by the witness on 20 July 2007, Exhibit
JJ, was put to him in cross-examination. In it the witness
stated
that when they went to the brother’s house, they asked
him if there was anything he possessed unlawfully. The brother
then stated that accused 3 had asked him to keep his firearm in the
cupboard drawer, where the police found it, and confirmed that
the
firearm and the airtime vouchers belonged to him.
David Pieterse
testified that he is a Lieutenant
Colonel in the South African Police Services stationed at the
Ballistic Unit Forensic Science
Laboratory in Pretoria.
On 30 August 2007 he received five firearms on which he
carried out tests and then completed a report, Exhibit KK. The
witness
then identified the firearms before the court.
Exhibit 1
is a 9 mm Tressito model BXP
hand carbine. It is often referred to wrongly as an Uzi.
Exhibit 2
is a 5.56 X 45 mm semi-automatic
rifle – serial number RSA 420019.
Exhibit 3
is a 5.56 X 45 semi-automatic
rifle – serial number removed. Exhibits 2 and 3
were wrongly referred to as R5
rifles. This because they look
exactly the same.
Exhibit 4
is a 5.56 X 45 mm magazine.
Exhibit 5
is also a 5.56 X 45 mm magazine.
Exhibit 6
is a 7.62 C 51 mm magazine.
Exhibit 7
is a .38 mm Torres revolver.
Exhibit 8
is a 9 mm Norinko, pistol, which
was referred to wrongly as a 9 mm Star, which is a common mistake.
Exhibit 9
is a 9 mm Torres semi-automatic
pistol, often wrongly referred to as a Beretta pistol as they look
the same.
Exhibit 10
is a 9 mm semi-automatic pistol
- possible a Star.
Exhibit 11
is a 9 mm Norinko
semi-automatic pistol.
Exhibit 12
is a 7.65 mm caliber CZ model
semi-automatic pistol.
In cross-examination the witness stated that he was
satisfied that he received the correct firearms because he checked
the
number of the seal bag in which they came, with the number
given in the covering letter, Exhibit “LL”, and they were
the same.
The court will now set out the evidence of the witnesses
who referred to single events.
Count 1
As there is no direct evidence of how or when the
Hyundai mini-truck referred to in this count was stolen, all the
accused were
acquitted on this count at the close of the State case.
Counts 2 and 3
Mzwandile Mtekwane testified that on 24 April he was
employed by Fidelity Services. On that day he was in a Kombi
which was
driven from Butterworth to Willowvale to collect money at,
amongst other places, Msengeni Supermarket. Mzukisi Madaka was
driving the vehicle and the witness and Mveleli Mdutyana were his
crew. They were in uniform. At the supermarket Mzukisi
Madaka, the witness and Mdutyana entered the business. The
witness was carrying a box in which the money would be placed.
The witness was armed with a Norinko 9 mm pistol, serial number
49204424, and Mdutyana with a revolver. Mdutyana entered
the
cash office in the store, followed by the witness, who then felt
someone pushing a firearm into the back of his neck.
The two
robbers, who were armed with handguns, then ordered them to lie
down. They all lay down. The robbers then took
the
firearms of the witness and Mdutyana, and demanded the money from the
personnel in the cash office, who handed it over to them.
The
robbers left the store with the money and the firearms.
Mrs Desiree Manthe testified that on the day of the
robbery she, a co-owner and manager of Msengeni Supermarket, was
working in
the cash office. Two robbers, who were carrying
handguns, entered and ordered everyone to lie down. They then
demanded
money and the witness opened a safe and gave them R171 000.
They took the money and left the store, but came back a short
while
later and demanded more money. The witness then gave them the
cash float of approximately R40 000, which they took.
They also
took airtime vouchers to the value of approximately R1000. The
robbers therefore stole R211 000 in cash, airtime
worth R1000, and
the money from the tills. One of the managers who was in the
office, Greg Blakemore was hit on the head
with a firearm. He
was the only one to suffer an injury.
Mrs Nonjongo Mbeleki, a till operator at Msengeni
Supermarket, testified that on 24 April 2007 two young men, armed
with handguns
entered the supermarket. One struck her on her
back with a handgun and told her to take the money out of the tills
and to
place it in one of the plastic bags that are usually used for
customers. When she had done so, he took the bag and her
Motorola
cell phone, which was valued at R899, and the two men left.
She crawled under the till and started crying. This was
due to
shock. She then ran to the cash office where everyone was lying
on the floor. She got her cell phone back and
she cannot
identify the robbers. She heard one gunshot.
Station Commander Zolile Mshumpela testified that on 24
April 2007 he was a detective at the Willowvale Police Station.
On
that day they received a report that there had been a robbery at
Msengeni Supermarket. The police conducted a search and found
a
white Hyundai mini-truck, registration number DNP 375 EC, in the
Mevana Forest in the Ciko Locality, in the district of Willowvale.
They called the finger print experts, but because the mini-truck was
locked, they could only examine the outside. The mini-truck
was
then towed to the police station.
Counts 4 and 5
Waheed Mahommed testified that he was employed as the
manager of Just Right at the Excelsior Complex, Mthatha, which sells
airtime.
On 25 May 2007 he closed his shop and went out through
the back door to his car. He then saw three young men entering
through
the gate of the premises carrying pistols. Another man,
who works in a shop next to Just Right, was driving a Nissan
vehicle.
When he wanted to go out of the gate the three young
men came to him and forced him to get out of his vehicle. They
then
came to the witness and told him to open his shop. The
witness opened the shop and was forced to open the safe. They
had firearms and they struck the witness on his head with one of
them. He had to have 8 or 10 stitches. After he opened
the safe they took plus minus R5000 in cash, also airtime vouchers to
the value of more than R300 000. They then took the
Nissan
vehicle and left. In August 2007 Inspector Mdepha of the police
telephoned the witness to say they had recovered the
airtime
vouchers. The witness went and identified them as those that
had been stolen on 25 May 2007. The recovered
vouchers were
valued at R77 000.
As has already been stated above, the investigating
officer,
Warrant Officer Mdepha
, testified that on the
night of 17/18 July 2007 he and other policemen went to a room in
Margate where they found accused 1 and
2 sleeping. They
arrested them and next to their bed they found a cardboard box
containing airtime vouchers. Mdepha
took the vouchers back with
him to Mthatha, where he showed them to the manager of Just Right,
Waheed Mahommed.
The latter testified that those
were the airtime vouchers that were stolen from Just Right in the
robbery on 25 May 2007.
This evidence connects accused 1 and 2 to the robbery at
Just Right on that day, and confirms the evidence of Mabhongo that
accused
1 and 2 were members of the robbing party.
Mbuyiselo Xishibana testified that on 25 May 2007 he was
employed by Community City Glass at Excelsior Complex, Mthatha.
After
he had finished work at 5 p.m. on that day, he went to his
motor vehicle, a twin cab Nissan Hardbody van, registration number
DTD
570 EC, which was parked in the back yard of the store.
After he had turned his vehicle, four young men came to it and
knocked
on the witness’ window, and also on the other side of
the vehicle. He was told to get out of the vehicle and to stand
against the wall. The robbers then took the keys of the
witness’ vehicle and a Nokia 1112 cell phone of the witness.
One of the robbers who came out of Just Right Communications carrying
papers, asked the other robbers where he must place the airtime,
and
he was told to place it in the motor vehicle.
They then drove off in the witness’ vehicle and
the Honda that was parked at the gate.
That same evening the police told the witness that they
had recovered his vehicle. It had a dent on the left bumper.
The vehicle was worth R100 000 plus, and it cost R3000 to repair the
dent. He did not recover the cell phone, which was valued
at
R700.
When testifying the witness identified accused 3 as the
robber who took his vehicle and drove it away.
He did not tell the police that he could identify one of
the robbers because he was shocked when he made his statement to the
police
on the same day as the robbery occurred.
Count 6
As no evidence was led on this count, all the accused
were found not guilty on it at the close of the State case.
Counts 7 and 8
Zola Tshayingca (count 7)
testified
that during 2007 he was employed by Fidelity as a driver. On 6
June 2007 he drove to Maclear. He was armed
with a BXP rifle.
Mnxakwe, Siyephu and Kani, who were also armed with firearms,
accompanied him. There they picked
up money and then proceeded
to Mount Fletcher, where they picked up more money. As they
left Maclear for Mthatha, on their
return journey, the witness saw a
bakkie approaching them from behind. When the bakkie drew level
with their vehicle the
witness heard two shots being fired from it.
The bakkie then stopped in front of the witness’ vehicle, but
he drove
past it. The bakkie then followed the witness’
vehicle and attempted to overtake it, but he prevented it doing so.
The robbers were still firing shots at the witness’ vehicle.
They rammed his vehicle from behind, but he continued
until he
reached a police road block and reported to them what had happened.
In the attack the rear left wheel of the witness’
vehicle was damaged and it was travelling on its rim. The
vehicle
also had gunshot holes in it. The witness suffered
deafness after the attack, and can still not hear properly.
The witness was not cross examined.
Mxolisi Siyephu
testified that he was a crew
member in the vehicle driven by Zola Tshayinga on 6 June 2007, and he
corroborated the evidence of
Zola of the attack on their vehicle on
that day. A vehicle drew level with their’s and then
shots were fired from it
at the window of their vehicle. The
window became “hazy”. They drove past the robbers
and reported to a
police road block.
The witness was not cross-examined.
Luzuko Yalezo
(count 8) testified that he is a
teacher in Qumbu. He and another man left Ugie for Qumbu at
15h30 on 6 June 2007 in his
white Opel Corsa, registration number NCW
9175. The witness was driving. On the way between Maclear
and Tsolo a young
man carrying a half-meter long firearm, and others,
stopped the vehicle the witness was in and searched it. Those
in the
vehicle were told to alight and go behind a certain shelter.
The young men then drove the Opel Corsa to a forest and from
there
onto the road towards Maclear. When it passed the witness saw
the occupants in the back of the vehicle.
The witness reported the robbery to the police on the
same day and on the following day they found his vehicle near Mthatha
Airport.
It had some dents in it.
The value of the Opel Corsa was R80 000, and it cost
R8000 to repair it. The witness cannot identify those who
robbed him
of his vehicle.
There was no cross-examination of the witness.
Counts 9 to 13
Kusasa Yantolo testified that on 25 June 2007 he drove
one of the cash-in-transit vehicles of Fidelity Cash Management.
They
collected money at Port St Johns and drove back to Mthatha.
Messrs Mxolisi, Siyephu and Mnxakwe were crew on the vehicle.
All three were armed with handguns. On the way he saw a Toyota
4X4 double cab following them. The men on the back of
the
following vehicle then fired many shots at them. He fired a
shot at them to scare them. They then bumped his vehicle
from
behind and it overturned. They were armed with a BXP machine
gun and another with a R1 rifle. After they had taken
the money
from the vehicle, and the firearms of the witness and his colleagues,
they stopped a double cab, boarded it and left.
They abandoned
their vehicle on the side of the road. The Fidelity
cash-in-transit vehicle was damaged at its back and on
its roof.
In court Yantolo identified accused 2 as one of the robbers.
When their vehicle overturned Siyephu lost consciousness
and only came to in Aurora Hospital, East London, where he remained
till
8 August 2008. His spinal cord was damaged during the
incident and he cannot now use the right side of his body properly.
Andile Nceka, who is employed by Fidelity, testified
that on 25 June 2007 he went to the scene of the robbery on the Port
St Johns
road. There he found the Fidelity cash-in-transit
vehicle lying on its side. The driver was Mr Yantolo.
Mr Siyephu was injured. Their firearms had been
taken. The money that was stolen was R177 871.86. It was
not recovered.
The vehicle had special armoured plating to
protect it. The damage to it cost R125 000 to repair.
Maliviwe Ngqukumba
testified that he is a taxi
owner. On 25 June 2007 accused 3 telephoned him and told him
that his motor vehicle had broken
down at Ntlaza Locality and that he
wanted the witness to tow it back. The witness went to where
accused 3’s vehicle
was. When he got there accused 2 and
3 and five other men got into his vehicle. They were carrying a
bag. Accused
3 then told the witness to drive off. When
they got to Misty Mount garage one of the men alighted there.
They continued
and stopped near Vuyani Hotel. There the young
men alighted with the bag. The witness then saw that there were
two
rifles, or ‘long guns’, in the bag. The witness
asked the accused why he did not let him tow his vehicle.
Accused 3 then gave him R700. The witness then dropped accused
3 at Zimbane.
Inspector Soyiso Mjacu
testified that on 25 June
2007 he went to the scene of a robbery on the Mthatha/Port St Johns
road. There he took photographs
of two vehicles – the
overturned Fidelity cash-in-transit vehicle and a Toyota 4X4 vehicle
– and also drew a map of
the scene – Exhibits E1-24.
The witness then lifted finger prints from an empty
Coca-Cola bottle that he found on the seat of the Toyota 4X4 vehicle
–
see Exhibit E14. He then checked the finger prints with
the police file of finger prints and found one to be identical to
Odwa Sithole, accused 3, and another to be identical to that of
Luyanda Mabhongo. The witness eventually handed in his
comparison
of the finger print he had lifted from the bottle and that
of accused 3 (Exhibit H), on which he had found 11 points of
similarity
– 7 being sufficient for proof of similarity.
On being questioned by the court the witness could not state when or
by whom the finger print on Exhibit H, which is alleged to be that of
accused 3, was lifted or placed on the police data file.
The witness was subsequently recalled as a witness and
he then handed in, as Exhibit L, a comparison of the finger print he
had
lifted from the bottle and that of accused 3 that the
investigating officer had taken. On comparison he found 11
points of
similarity.
As is stated above, Olwethu Feke testified that during
July 2007 accused 1 arrived at his home carrying a bag which
contained,
inter alia
, three firearms.
Count 14
The witness Madoda Mdikiza was warned in terms of
section 204
of the
Criminal Procedure Act, 51 of 1977
. He
testified that he knows accused 1, 2, 3 and 5. In July 2007
accused 2 telephoned the witness and said they must
meet at Vuyani
Hotel. When the witness went to the hotel he there met accused
2, 3 and 5 and three others – Sibusiso,
Gary and Luja (Luyanda
Mabhongo). There was a R1 rifle on the floor. Accused 4
was not there. They then conspired
to rob a Fidelity cash motor
vehicle that had come from Mthatha. The witness’ task was
to look out for the vehicle
when it left Engcobo and then to
telephone accused 3.
The witness left the hotel and went to Ngcobo.
When he saw the cash-in-transit vehicle leave Ngcobo, he telephoned
accused
3, but because they were not in position to commit the
robbery, it failed. The following day they again met at Vuyani
Hotel.
The witness, accused 1, 2 and 3 and Luja and Gary were
present. Accused 2 then instructed the witness to fetch accused
3
at Payne Location. He then fetched accused 2 and 5 from
Ikwezi. They were then planning to rob a vehicle on its way
to
Maclear.
They (the witness and accused 2, 3 and 5) then went to
the witness’ home to fetch a bag containing firearms. The
witness
then hitchhiked to Maclear to assist in that robbery.
The next day the police came looking for him. On 14 August 2007
he handed himself over to the police.
In cross-examination it was put to the witness that in
2000 he and accused both attended Zwelethemba Technical College, King
William’s
Town. The witness denied that he ever saw
accused there. He also denied that he stole R10000 from the
college.
Count 15
Nozizwe Gazi testified that on 9 July 2007 she parked
her Mazda twin cab vehicle, registration number CXY 548 EC, in the
yard of
her home at 38 Maqhubela Street, Mbuqe Extension, and locked
it with a gear lock. When she awoke the next morning the
vehicle
was gone. A week later she was informed that the
vehicle had been found. She recovered it from the police.
The
gear lock had been removed and the left front of the vehicle had
been seriously damaged. She bought the vehicle, second hand,
in
2003 for R68000 and it cost R3000 to repair the damage to it.
Counts 16 and 17
Andile Somkhebe
(count 16) testified that in 2007
he was employed by Fidelity Cash Management as a driver. On 13
July he drove one of the
company’s green cash-in-transit
vehicles from Mthatha to Tsolo. Lwandile Cengimbo was his crew
member. Both of
them were armed with 9 mm handguns. They
collected money from the company’s clients at Tsolo, and then
proceeded to
Maclear, where they banked the money at First National
Bank and Standard Bank. From there they proceeded to Mount
Fletcher
where they collected more money, which they banked in
Maclear. They then returned to Tsolo.
On the way the witness felt something bump his vehicle
twice from behind. He then saw a white Mazda double cab.
The
witness’s vehicle stopped and seven people alighted from
the Mazda and fired shots at the witness’ vehicle. They
were armed with rifles and handguns. The witness then begged
them to stop shooting. They then took the witness’
and
his crew’s firearms and ordered them to lie down.
The robbers then stopped other vehicles and pushed the
Fidelity vehicle, and tore open its top. They then demanded
money from
the witness, but found none. The robbers then
stopped a bakkie, in which a male and a female were travelling.
They
forced them to get out of it and they drove away in that
vehicle.
The witness lost a tooth and suffered a cut on his mouth
in the attack, and he was treated at St. Mary’s Hospital,
Mthatha.
The vehicle had bullet holes in its back door.
Somkhebe was subsequently recalled to the witness box
and shown all the firearms that have been recovered. He
identified Exhibit
11, a 9 mm Norinko pistol as his stolen firearm.
Ayanda Majeke testified that on 7 August 2007 accused 5
offered to sell the pistol, Exhibit 11, to him. He said that he
had
obtained it in a robbery and that he needed money to get away as
his fellow robbers had been arrested. Later that day the
police
searched the motor vehicle in which he and accused 5 were passengers,
and they found Exhibit 11 and another firearm in it.
They were
then arrested. In cross-examination it was put to Majeke that
he was falsely implicating accused 5 because the
latter had had a
relationship with his girlfriend. This Majeke denied.
Attorney Bahle, who appears for accused 5, has submitted
that it will be dangerous to place any reliance on Majeke’s
evidence.
This is so because he is presently charged with
similar counts to those that the accused was facing in this case.
He intends
turning State witness and is presently in the Police
Protection Unit.
Furthermore, when Majeke was arrested he made a
statement, Exhibit WW, he stated as follows:
“
I admit the allegations against me, that’s
page 10 M’Lord, of the statement. On the date, time,
place in question,
I got arrested by the police. During the
search of the motor vehicle, one small black bag, was opened by the
police, and
inside it, were two firearms. One belonging to me,
and the other one belonged to Mthuthuzeli Sisilana, who was also
arrested.
my hand grenade, which was in my red bag – in
my red handbag was also taken possession of by the police. We
were later
arrested. We were later detained at Central Police
Station, Mthatha”.
In his evidence before this court Majeke maintained that
the statement, Exhibit WW, was false and that he had made it to
protect
himself. Whilst testifying he also examined the two
similar firearms, Exhibits 8 and 11, and stated that it was Exhibit
11
that accused 5 had offered him for sale. He identified it by
certain scratch marks on it. Mr Bahle correctly contended
that
this was proof that Majeke had been in possession of Exhibit 11.
As there is a strong suspicion that Majeke is testifying
to protect himself, and also due to improbabilities in his evidence,
the
court agrees with Mr Bahle that no reliance can be placed on his
evidence.
Count 18
Ntombizodwa Jezile testified that on 13 July 2007 she
was travelling from Mthatha to Ugie with Inspector Lungisa Madakwane
of the
South African Police Services, Ugie, in his Isuzu double cab,
registration number CPS 331 EC. As they approached a large
collection of people, a man approached them and pointed a rifle at
them. He told them to alight from the vehicle. After
they
had done so Inspector Madakwane ran away. When he ran away the
witness heard gun shots. A man then came and drove
off in
Inspector Madakwane’s vehicle. It was subsequently
recovered on the road between Qumbu and Tsolo.
There was a vehicle of Fidelity near to where this
happened. People were pushing it.
Since this incident happened, Inspector Madakwane has
been involved in a motor vehicle accident and he is now mentally
disturbed.
There was no cross-examination of this witness.
19 to 21
The evidence proves that various accused were, during
various of the offences, in possession of firearms.
Before Counsel for the State, Advocate Poswa, closed the
case for the State, it was agreed between the parties that the
evidence
given by the following witnesses, who testified during the
trials-within-a-trial, would be incorporated in, and form part of the
evidence in the main case:
Lieutenant
Colonel J.K. Tsoaranyane.
Captain
L.S. Mahobe.
Captain
N.S. Ndzendevu.
Captain
L. Sigcu.
Captain
B.A. Hanise.
Warrant
Officer V. Maqubela.
Warrant
Officer D. Qokoyi.
Warrant
Officer M. Fose.
Warrant
Officer Mancobe.
Warrant
Officer B. Busakwe.
Ms
J. Mboyana.
Copies of the court’s judgments in the
trials-within-a-trial in respect of the admissibility of confessions
made by accused
1 and 2 (Annexure 1), and the pointing out and
statements by accused 3, 4 and 5, respectively (Annexure 2), are
attached hereto.
When the court admitted the confessions and
admissions by accused 1, 2 and 3 it did not realise how important
that evidence would
be in the final decision of the case. The
confessions negate the alleged alibis that the accused raised in
their evidence.
A person who knows that he has an alibi that
will exonerate him from blame, will not make a confession. The
confessions therefore
prove that the so-called alibis are simply
another false fabrication by the accused.
In both trials-with-in-a-trial the evidence of the
person who took the confession, or presided over the pointing out,
has been considered
in great detail. As is reflected in
Annexure 1, the evidence of Lieutenant Colonel Tsoaranyane and
Captain Mahobe were weighed
in great detail against that of the
accused, 1 and 2, respectively. The court came to the
conclusion that the two police
officers were being truthful when they
testified that the accused had made their statements freely and
voluntarily, and that the
accused were untruthful when they said they
had not made the confessions. Although the accused again in the
main trial denied
that they made the confessions, no new evidence has
been led to induce the court to change the findings it made in
Annexure 1.
The court hereby confirms those findings. The
confessions, which were naturally only admitted after the court had
given judgment
on their admissibility, both go into such detail, and
reflect such personal knowledge of the offences, that it is obvious
that
they could only have been made by the participants in the
actions they describe i.e. the accused persons. The contents of
the confessions therefore support the court’s findings that it
was the accused who made the confessions.
The confession made by accused 1, Exhibit CCC, to
Lieutenant Colonel Tsoaranyane on 20 July 2008, reads as follows:
“
I do not remember the date and month when we committed an
armed robbery in Willowvale. The people who were involved in it
were K.K. Kgs, Sbu, Sakie, Zuks, Bongani, Prince Ors and myself.
I know the nicknames of my friends only. On that particular
day
we left Mthatha with a mini truck to Willowvale with the intention to
commit armed robbery at about 04.00. We arrived
at Willowvale
at about 07.00 not in town and parked the truck. We
waited for the m/vehicle which was used by the Fidelity
guards.
No so long it appeared from another direction. We followed on
foot and the mini truck followed driven by Sibusiso.
Zuks and
Oros entered the wholesale and waited for the security guards.
The other group including myself waited outside.
Security
guards entered the wholesale. Sibusiso blocked the Fidelity
guards m/vehicle by parking in front of it.
Kgs and I stood in front of the entrance observing. During
that time Ors and Zuks came out with a plastic containing money.
We ran into our mini truck and Sibusiso drove it. I am not
familiar with Willowvale so I do not know even the place where
we
dropped the mini truck and ran into the forest.
We hide ourselves in the forest. We divided the money
amongst ourselves. At about 16:00 we finished dividing the
money.
Each one of use received a sum of twenty one or twenty
two thousand rand cash (R21000-00/R22000-00). We left the
forest on
foot. On our way we saw another m/vehicle coming.
Prince was behind us. He tried to stop that m/vehicle and fired
some shots and unfortunately he hit Zuks on the leg and fell down.
I rushed to him and discovered that his leg was broken.
Zuks
and Prince stayed at the scene because he could not walk and we left
them to organize transport.
We walked for a long distance looking for the main road using
short cuts. We found the main road. Kgs had already
phoned
his friend unknown to me to come with a car to pick us.
That guy arrived with a Toyota Hi-lux. I did not recognize the
number plate.
He told us that he had no petrol and was not sure whether it will
take us to Mthatha. We were forced not to go back to pick
up
Zuks and Prince then we proceeded to Mthatha. We arrived in
Mthatha and disperse in town.
The second armed robbery which I was involved took place in
Tsolo. I do not remember the month and date but this year.
Martin, Bongani, Sibusiso, Sakie, Geary and I went to Tsolo with a
bakkie with the intention to rob Fedelity guards. We arrived
at
Tsolo but I do not know the name of locality. We waited for the
Fedelity m/vehicle. I appeared and we followed
it and we
bumped it at the back. Sibusiso was the driver. Martin
and I fell down during the collision. We followed
on foot as
they were still chasing the said m/vehicle.
On our way we met them coming back with another bakkie. We
jumped into that bakkie and run away. We took a road which
lead
us to Qumbu. We went to Mthatha and they dropped at
Sibangweni. No money was taken from Fedelity.
The third armed robbery took place in Port St Johns. I do
not remember the date and month but this year. Geary, K.K.,
Sibusiso, Mtura, Oros, Sakie and I went to Port St Johns with the
intention to rob Fedelity guards. We were using a Nissan
bakkie.
We arrived in Port St Johns iu the afternoon but not in town.
I do not know the name of the locality where we waited for the
Fedelity guards. The Fedelity m/vehicle appeared and we chased
it and Sakie bumped it at back and it rolled. We took
the money
in the combi and two fire arms from the security. During armed
robbery other robbers were blocking the traffic.
They hijacked
one bakkie and run away with it to the forest. We dumped it in
the forest. We divided the money in the
forest. Each one
of us received a sum of nineteen thousand (R19 000-00)
We footed up to Ntlaza Hospital where we hitch hiked. When
we arrived at Mthatha we dispersed.
The fourth armed robbery took place in Tsolo. I do not
remember the date during July this year we proceeded to Tsolo with
the intention to rob the Fedelity guards. Sakie, K.K., Oros,
Zola, Mtura and I went to Tsolo with a bakkie. We left
the town
towards Maclear where we waited for the Fedelity guards.
It appeared and we chased it and bumped at. They reduced
speed and we fired some shots on the wheels and it stopped.
We
tried to rolled it and it did not capsized. We pushed it and it
capsized. We tried to open it and all attempts were
fruitless.
Sakie bumped it and its door opened. When we checked inside
there was a drop safe. We did not get
money. Other
robbers were blocking the road. They hijacked one bakkie and we
jumped into it and run away. On
the way we met police vehicle
and they stopped us we managed to escape and run into the forest.
They chased us but we managed
to hide ourselves in the forest.
During the night we got out of the forest and walk until we find
ourselves in the area of Qumbu. We hitchhiked one by one to
Mthatha. Then the following Sunday the police arrived at my
homestead. They went to my neighbour’s premises where
I
was sleeping. I managed to escape.
I phoned Sakie informing him that the police were looking for me
and I have managed to escape. I then went to Sakie who was
in
town at that time and we left for Port Shepstone
We stayed at Port Shepstone in Sakie’s girlfriend.
Police arrived at about 02:00 on the 18/07/2007 and arrested both
of
use. They also recovered two 9mm pistol.
The police questioned me about other firearms and I told them that
they are at Mthatha. We proceeded to Mthatha and showed
them
the room where I hide them. The room belongs to my friend
Olwetu. Two rifles and Uzi were recovered by the police.
That is all I wish to say.”
In this confession accused 1 admits that he was involved
in counts 2 and 3, 7, 9 to 13 and 16 to 18. The confession
corroborates
the State witnesses who testified on those counts.
The confession made by accused 2 on 20 July 2007 to
Captain Mahobe, Exhibit DDD, reads as follows:
“
During this year 2007 but I do not remember the date and
month, we planned to rob money in Willowvale. We were nine in
our
number. It was myself, Odwa Sithole, K.K, who is also known
as Luja, Cages - I do not know his real name, Sibusiso Jejane
and
Bongani Same. On this day of the robbery we used a KIA mini
truck and we were all using that mini truck. The said
truck was
robbed at Kwezi Township on the day before this robbery. On
this day in question we left Umtata at about 03h00
in the morning
rushing to the pay station in Willowvale. We were all in
possession of fire-arms.
(2)
We arrived in Willowvale at about 10h00 during the morning.
The name of this place is called Emsengeni. On our arrival
we
waited for few minutes and the car from Fidelity which is
transporting money arrived.
(3)
We then positioned ourselves and some of us entered the wholesale
whilst others were standing outside. The group that entered
the
shop took the money from the security guards. I was among the
group that was inside. After that we all ran away
with our
minitruck. We ran until we reached certain forest and that is
where we shared the money. I do not know how
much was that that
amount but each person got a share of R24,000-00 as we were (nine) 9
in our number. After that we went
to Umtata leaving the mini
truck in the forest and we were fetched by one young man called
Nofinish and he was driving a white
Mazda bakkie. On our
arrival we parted each other. That is all for the Willowvale
case and now I am starting with one
in Tsolo.
(4)
Again during July 2007 we planned another robbery. This
robbery was to be done in Tsolo. We met at Esibangweni near
Vuyani Hotel at a tavern. It was myself, Zola, Simthembile
Zibi, K.K. who is also called Luja and Odwa Sithole. We agreed
that we must go and rob Fidelity security in Tsolo. We used a
Mazda twin cab which was stolen at Mbuqe Extension by Sibusiso.
It was on the 12/07/2007.
(5)
On 12/07/2007 at about 13h00 we left Umtata for Tsolo. We
drove until we reached a certain locality but I do no know its name
in Tsolo. On arrival in this locality we stopped and waited for
the Fidelity guards car as we were aware that is was in that
area.
Within no time it appeared. We chased it and I hit it at the
back as I was driving. After I hit it, it
fell down on its
side. We quickly went out with firearms. There were (3)
three security guards in that Fidelity car.
We pointed them and
they fell down on their stomachs. We tried to open and after it
open we found that there was no money
inside. Fire-arms were
used and shots were fired but nobody got injured. After we did
not get the money we left them
there. I do no know what
happened to them. That is all about Tsolo incident and I am now
starting the last one which
occurred in Port St Johns. It was
also this year but I do not remember the date, but I am sure it was
in June.
(6)
It was myself, Odwa Sithole, Simthembile Zibi, Sibusiso Jejane and
Garry. We were using Toyota twin cab which was stolen from
Grahamstown. We departed from Umtata at about 06h00 and we were
going to Bizana for robbery which did not succeed because
of
visibility of police in that area at Bizana. Since we do not
like to fight with police we decided to call of that Bizana
robbery.
On our way back we decided that we must robbery Fidelity security in
Port St Johns.
(7)
We drove past Port St Johns and on our way to Umtata before we
reached Ntlaza Hospital we met the combi of Fidelity. We chased
it and later collided with it and it fell on its side. There
were three (3) security guards inside and we pointed them with
fire-arms and started taking money. We took all the money that
was there and left leaving the guards there not injured.
We
entered a certain fore known by Gary and we started sharing money.
Each person received R23,000-00 and we were six in
our number.
After we have shared the money we went back to Umtata. The
above are only robberies that I know and that
I was present when
being committed. That is all I wish to say.”
So too, as can be seen in annexure 2, the court weighed
up the evidence of Captain N.S. Ndzendevu against that of the accused
3,
who denied the pointing out, and also that any statements had been
made. The court found that the pointing out had been made
freely and voluntarily, and was admissible. As there was,
however, no proof that the statements by accused 4 and 5 had been
made freely and voluntarily, they were held inadmissible as evidence.
Captain N.S. Ndzendevu, in whose presence accused 3 made
the pointing out, testified that he and accused 3 boarded a vehicle
driven
by Constable M. Williams. He, Captain Ndzendevu, then
recorded in a statement, Exhibit TT, what happened on 21 July 2007.
In his evidence he confirmed that the content of Exhibit TT is
correct.
Exhibit TT reads as follows
“
At the office Constable Moosa from LCRC took photos of the
suspect.
At 10h50 in the vehicle KM 87895 Constable Moosa took photo
of the speedometer reading.
“
We should drive to Willowvale. I am not in a position
to direct you from here. It was my first time to go to that
place.
We drove in a gravel road. I do not know which
gravel road was it. It was at night when we were driving in
it.
Just drive to Willowvale I will see the place we robbed.:
At 11h45 km reading 87981 stopped at Idutywa waiting for Constable
Moosa putting petrol in the vehicle he is driving.
At 1153 left Idutywa.
At 12h15 km 88013 at Willowvale in the main street “Stop
here: This is a wholesale where myself, Sibusiso Jejane,
Boyzit,
Luyanda Mabhongo, Zuko Mabhongo, Kages, Bongani Same,
Sakhumzi Saki Mvoko and Prince from Elliotdale robbed money from the
security
guards from Fidelity Guard Security Company. I can see
this wholesale by its name Emsengeni.” Photo taken.
At 12h20 “This is the spot where I was standing carrying an R4
rifle watching while my colleagues got into the Wholesale
and robbed
money. Zuko and Kages came out of the Wholesale carrying bags
with money. We came here with a KIA mini truck
white in colour
that we robbed on the previous night at Kwezi Township in Umtata.
After we finished the robbery we drove
in the same truck to a certain
gravel road until we abandoned the truck in that forest. We
then shared the money in that
forest – Each of us got about
R24000-00. We stayed in that forest until it got dark. We
then phoned an Nofinish
who came to fetch us in Ford Courier van.
We all drove to Umtata. Let us now drive to Port St Johns.
I want to
show you another place”. Photo taken.
At 12h35 left Willowvale.
At 13h45 km reading 88131 at Umtata Total Fuel Centre Constable
(F) Williams buying food. I gave her money. I gave Odwa
Sithole a take away of rice and been. I ate samp and beef.
Const (F) Williams and the photographer bought themselves
burgers.
We ate in vehicle.
At 14h20 Finished eating. I informed the suspect Odwa
Sithole of his right as they are contained in section 35 of the
Constitution
of the Republic of South Africa, Act 108 of 1996.
“
I understand the right. I am still willing to show
you some points. Let us go.”
At 14h27 left Total Fuel Centre.
“
Drive to the direction of Port St Johns now”
At 14h57 km reading 88189 at the junction to Mantusini Clinic
“Stop here. This is the junction where myself and my
colleagues,
Sakhumzi Saki Mvoko, Sibusiso Jejane, Luyanda Mabhongo,
Gary from Port St Johns, Mthura or Mthuthuzeli and Boyzit were
waiting
for the vehicle from Fidelity Security Guard. The
vehicle was to come from the direction of Port St Johns.
We waited there until it came at about 17h00. I cannot
remember the date. It drove past us towards Umtata. We
then followed it. We were driving in a Toyota double cab white
in colour. The said vehicle was brought by Saki Mvoko
and
Sibusiso Jejane. They stolen it from Grahamstown. Let us
drive back to the direction Umtata.” Photo
taken
At 15h20 On the road to Umtata. “We were still
following the Security Guard’s vehicle here”
At 15h35 km reading 88197
“
Stop here. This is the spot where the vehicle of the
security guards from Fidelity was bumped by the vehicle we were
driving.
The guards’ vehicle lost control and it lied on
its side. I was armed with a a pistol. Mthura and Sbu
took the
money which was in plastic bags. We then robbed a
Toyota van navy in colour from the people who stopped next to
the
scene. We drove in that Toyota to a certain gravel road.
I was not in a position to show that junction. We drove
until
we dumped the vehicle in a forest. Each got about R26 000.
When it was dark I phoned Nofinish to come and fetch
us.
Nofinish referred me to Maliviwe who came in a combi. We were
then taken to Umtata. Let us drive to the direction
of
Maclear. I want to show you the third place.”
Photo was taken.
At 15h55 left the spot
At 16h20 km reading at Tsolo bought 4 cans of Coca Cola and serve
all of us and we drank. I gave the suspect one can.
No
photo taken.
At 16h24 left Tsolo.
At 16h43 km 88322 at the National Road between Maclear and Tsolo
near Ngcele Location.
“
Stop. This is the spot where we hit the vehicle from
Fidelity Security Company. It was myself, Mthura, Luyanda,
Boyzit,
Fuzile and Saki. We were driving in a Mazda Magnum van
double cab which wed stolen from Kwezi Township few days before that
day. We used it to bump the security vehicle until it fell on
its side. We could not get money since two guards said
they had
no keys for the safe. We robbed an Isuzu double cab from the
man whop stopped at the scene. We all drove in
it until we
dropped it at a certain gravel road. I do not know the gravel
road. We walked to Qumbu the whole night.
We then
returned to Umtata per hikes. Let us go back to Umtata. I
am going to show you the place where we robbed airtime
cards at MTN
at Umtata at Chattam Street.”
Photo taken
At 1659 left the spot back to Umtata
At 17h53 It is dark. We cannot proceed with the pointing
out.
At 18h00 km reading 88398 back at the office. Const Moosa
took photos of the naked body of the suspect.”
The abovementioned pointing out connects accused 3 to
counts 2, 3, 4, 5, 9 to 13 and 16 to 18, and it corroborates the
witnesses
who testified on those counts.
The abovementioned evidence proves that all the offences
specified in the charge sheet, save those mentioned in counts 1 and
6,
have been committed, and all that remains for the court to do is
to decide who committed the offences.
Count 1 refers to the robbery of a Hyundai mini-truck,
registration number DNP375EC, from Loyiso Metu, who has not
testified.
Luyanda Mabhongo testified that he, accused 2, 3, 4,
KG, Zuko Mabhongo and Prince went to Ikwezi. All were armed.
When
they saw a double cab motor vehicle parked next to a house, they
entered the house, obtained the keys of the vehicle and left in
it.
When accused 3 said that the vehicle was not fit for the journey to
Willowvale, they abandoned it near Ikwezi.
Accused 3,
Zuko and KG then alighted from their vehicle and a short while later
telephoned those who stayed behind and told
them that they had found
a vehicle. This was evidently the mini-truck in which they
travelled to Willowvale the next morning.
There is no direct
evidence to whom the mini-truck belongs, nor how, or where, it was
taken. The court could therefore make
no findings on these
issues, and all the accused were found not guilty and discharged on
count 1 at the close of the State case.
There is no evidence on count 6 and all the accused were
also found not guilty and discharged on that count at the close of
the
State case.
The court will now consider the evidence given by the
five accused and their witnesses.
Case for Accused 1:
When accused 1 testified he reiterated his plea of not
guilt and denied his involvement in any of the counts. He
stated that
he was in standard 9 when he left school in 2005.
He then worked in a Chinese shop in Mthatha, till around May 2006.
He knows all his co-accused.
He maintained that the first witness that wrongly
inculpated him was Luyanda Mabhongo, who was a total stranger to
him. He
testified that the reason for Mabhongo doing so was
that when all the accused were in prison, Mabhongo insisted that he
and the
other accused give him money to pay for his attorney, and
also the Golf motor vehicle of accused 2. When they refused to
do so, he decided to falsely inculpate them. Mabhongo had
denied this allegation, which is highly improbable. Why would
he, who had committed various crimes with his colleagues, suddenly
turn against them. Far more reasonable is Mabhongo’s
evidence that he turned State witness because his conscience was
worrying him. The fact that he lost a leg when being arrested
must surely have had something to do with this decision. The
evidence of accused 1 that Mabhongo was a total stranger to
him, whom
he met for the first time in prison, makes the alleged reason for
Mabhongo testifying against him even more improbable.
Accused 1, when cross-examining Nofinish Kobo, also
maintained that Kobo had testified falsely against him because he had
sold a
vehicle to Kobo, who ‘ran away’ and did not pay
for it. In his evidence, however, accused 1 stated that
Kobo, after having made certain payments on the vehicle, could not
make further payments on it and then returned it to the accused.
Because accused 1 was slow in refunding to Kobo the payments he had
already made, he testified against him. This Kobo denied.
This is such a flimsy so-called reason to have involved
accused 1 in such serious crimes, that the court has no hesitation in
rejecting
it as false.
The next witness who accused 1 testified had testified
false against him was Olwethu Feke, who testified that accused 1
brought
a bag containing three firearms and magazines to his, Feke’s,
home and asked him to keep them. He and accused 1 then
buried
the firearms. Later the accused returned with Warrant Officer
Mdepha, to whom he showed where the firearms were hidden.
Accused 1 stated that he knows Olwethu because he, the
accused, had a relationship with his sister, from which a child was
born.
He denies that he took firearms to Olwethu, and also that
he ever returned with Mdepha, or pointed out to Mdepha where to find
the firearms. The latter testified that accused 1 had taken him
to Olwethu’s home and had shown him where the firearms
were.
Accused 1 does not know where Olwethu could have obtained the
firearms, nor does he know how the police would have
known about the
firearms if he had not told them about them.
Accused 1 alleged that Olwethu had given false evidence
against him because he had denied paternity of his sister’s
child.
The accused, however, admitted that there was no
ill-feeling between him and Olwethu, and that Olwethu had come to see
him in prison
after he was arrested. This lack of animosity was
confirmed by Feke’s sister. Accused 1, however, alleged
that
Feke came to see him in prison: “To make sure that I
(accused 1) am arrested.” This alleged reason is simply
ridiculous.
Olwethu made a good impression on the court when he
testified. He told the court exactly what had happened and he
at no stage
tried to hide what he had done concerning the
firearms that accused 1 brought to him. The court gained the
impression
that he was a young, unsophisticated man who was speaking
the truth. His evidence is corroborated by that of Warrant
Officer
Mdepha, who testified that it was accused 1 who directed him
to Feke’s home, where the firearms were, and that he, accused
1, was present when they were found.
The court is therefore satisfied that Olwethu’s
evidence is the truth, and that the allegation by accused 1 that
there was
animosity between them is false. Olwethu’s
evidence must therefore be accepted and that of accused 1 rejected.
Accused 1 testified that the fourth witness who had
testified falsely against him was Madoda Madikiza, who told the court
that accused
1 was one of the conspirators in count 14. Accused
1 testified that Madikiza was a complete stranger to him and he does
not
know why he testified against him. He maintained that
Madikiza’s evidence is not true. Madikiza’s
evidence
is corroborated by that of Luyanda Mbhongo.
The court is satisfied that accused 1 has been
untruthful in his denial of the evidence of Luyanda Mabhongo, Olwethu
Feke and Madoda
Madikiza, and that the alleged reasons for them
testifying against him, are clearly fabricated untruths. This
is simply another
example of the accused in this case alleging that
all the State witnesses who testified against them have purposely and
wrongfully
fabricated their false evidence. The untruthfulness
of accused 1 in this respect is one of the main reasons why the court
can place no reliance on his evidence and must reject it as false.
Accused 1 has also raised alibis to the various counts.
He maintains that on 23 April 2007 (the day on which count 1 was
committed),
he proceeded to the High Court, Mthatha, in the morning.
He then went to his workplace at a Chinese shop. On the next
day, 24 April 2007 (the day on which counts 2 and 3 were committed)
he went to his workplace and there requested to be allowed
to visit a
doctor as he was not feeling well. His supervisor suggested
that because he was absent on the previous day, he
obtain a medical
certificate that confirmed that he had been to see a doctor. As
he did not have enough money to see
a doctor, he went to his sister
who gave him the money. He then went to consult Dr Thutha in
Sprigg Street, Mthatha, who,
according to him, examined him and gave
him a medical certificate, Exhibit JJJ, which laid him off sick for
24 April 2007.
He did therefore not take part in the robbery at
Msengeni Supermarket on that day; he was then at Dr Thutha’s
surgery.
The evidence by Luyanda Mabhongo and Nofinish Kobo
that he had taken part in the robbery is therefore false. So
too is the
confession, Exhibit CCC, in which he is alleged to have
admitted that he was one of the persons who committed the robberies.
He never made a confession and he was simply forced to sign Exhibit
CCC after it had been written out.
The whole issue of the medical certificate, Exhibit JJJ,
is shrouded in uncertainty and suspicion. Although the accused
testified
that he was examined by Dr Thutha, it was Dr Ntikinca who
saw the patient and gave him the medical certificate. The court
will expand later on the evidence of Dr Ntikinca.
What is, however, clear is that accused 1 has wrongly
stated that Dr Thutha, and not Dr Ntikinca, examined him. Is
this because
Dr Thutha’s name is on the medical report?
The court wonders if the accused ever went for an examination.
Advocate
Gabavana had to point out the accused to Dr Ntikinca. It
appears therefore that anyone could have gone for the examination and
simply have said that he was accused 1.
Furthermore, the certificate that was obtained for the
accused’s employer was never handed to, or kept by him.
Instead
it has, since 2007, been kept in safe-keeping either in a
file or bag by the accused’s mother. The only reason one
can find for this strange behaviour is that the certificate was being
kept to be used at some future date for some specific purpose.
Possibly to prove an alibi.
Accused 1 denied that he was a party to the robberies at
Just Right, Mthatha (counts 4 and 5). He also testified that he
did
not see the box containing airtime vouchers that the police found
in the room in which he was arrested in Margate. He did
also
not see the two firearms that were recovered there, one of which is
connected to count 16.
On 25 June 2007, the day of the robbery on the Port St
Johns road (counts 9-13), he was shopping in Mthatha for a birthday
present
for his younger brother, and he was not involved in the
robbery at Just Right. It seems strange that the mother and the
sister
of the younger brother (who had just turned six years old),
both of whom lived in Mthatha, did not buy the present for him and
that the elder brother, the accused, had to do so.
He denied he was present when the conspiracy in count 14
was committed, and also when count 15 was committed
In respect of count 16 he testified that on the day of
that offence he was assisting a person who was working on a motor
car.
In the afternoon his mother telephoned him and told him
that his girlfriend was in labour. He then borrowed a vehicle
and
took her to hospital. This also seems strange in view of
his evidence that he maintained that it was not his child.
As stated above, accused 1 denied that he made the
confession, Exhibit CCC, in which he admitted in detail his
involvement in counts
2, 3, 9 to 13, 14 and 16 to 18. He also
averred that all the State witnesses who had implicated him in these
counts, had
been untruthful.
Accused 1 testified that the first time he told his
Counsel about the medical certificate, which is surely a vital part
of his alibis,
was just before he gave evidence.
In cross-examination accused 1 repeated the alibis he
had raised in his evidence-in-chief. When he was pressed on why
the
alibis were not put to Luyanda Mabhongo, Nofinish Kobo, or the
police witnesses when they testified, some of whom testified twice,
he alleged that he had not had sufficient opportunity to consult with
his Counsel. This allegation by the accused is obviously
false
as the court record is replete with entries of how and when the
court, at the request of the accused’s Counsel, Advocate
Gabavana, granted him adjournments to consult with his client.
After every State witness had given his evidence-in-chief,
the court
adjourned the sitting to enable Counsel to consult with their
clients. When an accused put up his hand, the court would
stop the
proceedings so that Counsel could consult with him. The court
also arranged for Counsel and the accused to consult
with one another
in the courtroom during adjournments. And, lastly, the
court arranged for such consultations at Wellington
Prison, Mthatha,
before the accused testified.
Furthermore, if there had been the so-called alibi, that
would surely have been the first thing the accused would have told
his
Counsel, Advocate Gabavana. He is an able and conscientious
Counsel, who would then have put it to the State witnesses in
cross-examination. As this was not done the court can only
conclude that the whole question of the alibi was a false
afterthought
by the accused.
Accused 1 is an intelligent young man who has passed
standard 9 at school. His evidence that he did not have
sufficient opportunity
to consult with his Counsel is not only false,
but is also an example of his ability to fabricate an answer that he
believes will
meet the needs of the moment.
This so-called reason for the alibi not having been put
to the accused is clearly false, and is simply further proof that no
reliance
whatsoever can be placed on the evidence of accused 1.
The court is also satisfied that he has fabricated the
so-called reasons for the witnesses testifying against him. If
he had
told the court that he did not know why they testified against
him, the court would have had to seriously consider that evidence.
Instead, on each occasion he provides a highly improbable explanation
for the witness’ actions. As stated above, the court
has not
the slightest hesitation in rejecting those explanations as
improbable and false.
The court therefore accepts that accused 1 was being
untruthful in his evidence when he gave the reasons why Luyanda
Mabhongo, Nofinish
Kobo, Olwethu Feke and Madoda Madikiza testified
against him. When his evidence is weighed against that of those
witnesses,
the court has no hesitation in accepting their evidence as
being truthful and rejecting his as false.
In his evidence accused 1 also denied that he made the
confession, Exhibit CCC, to Lieutenant Colonel Tsoaranyane. The
court
has dealt with this aspect in detail in its judgment in the
trial-within-a-trial, Annexure 1 hereto, and it does not intend
repeating
here its reasons for rejecting this denial by the accused.
Nothing new has transpired in this respect during the trial proper,
and the court here simply confirms and repeats the findings it made
in Annexure 1, namely, that accused 1 made the confession and
that he
did so freely and voluntarily.
As set out above, there are four alibis that the court
must consider. They relate to the whereabouts of accused 1 on :
23 and 24 April 2007 (counts 1, 2 and 3 – Ikwezi
and Willowvale);
25 May 2007 (counts 4 and 5 – Just Right);
24 June 2007 (counts 9 to 13 – Port St Johns
road); and on
13 July 2007 (counts 16 to 18 – Tsolo).
The witnesses who testified on these alibis for the
defence were accused 1, the mother of accused 1, Mrs Z.P. Zibi, his
sister,
Ms B. Zibi, the doctor who issued the medical certificate
Exhibit JJJ, Dr M. Ntikinca, and Yoqa Qokweni, a panel beater.
When considering the alibis of accused 1 the court can
mention the undermentioned general facts
Seldom in its experience has the court heard so many
falsehoods and untruths in a case as have been raised by the accused
in this
case.
It is indeed surprising that accused 1, who has told
the court so many untruths in respect of the State witnesses, now
wishes
the court to accept that he is speaking the truth concerning
his alleged alibis. Accused 1 has been untruthful about
Lieutenant
Colonel Tsoaranyane, who recorded his confession, and
about Luyanda Mabhongo, Olwethu Feke and Madoda Madikiza, who
testified
against him. Although this might in itself be
grounds to reject the alibis, the court will not do so, but will
rather consider
objectively all the evidence on the alibis.
Counsel for the State, Advocate Poswa, has submitted
that the alibis are clearly a false afterthought that have only been
raised
very late in the trial, and were not put to the State
witnesses. Accused 1 maintains that the reason for them being
raised
so late in the trial was because he could not consult
sufficiently with his advocate, which statement the court has found
to
be a blatant untruth. If the alibis were true, the first
thing the accused would have said to his Counsel would have been:
“But I was not there on that day. I was at so and so.”
The court must therefore agree with this submission
by Advocate
Poswa that the alibis are an afterthought.
A further factor that substantiates the submission in
(3) above, is that no mention was made of the alibis during the
trial-within-a-trial.
If they were then known they would
surely have been raised as they would have been a powerful factor to
prove that the accused
did not make the confession.
If the alibis were the truth, accused 1 would not have
made the confession, Exhibit CCC. The two can simply not
co-exist;
if there was an alibi, he would not have made the
confession. The court found in the trial-within-a-trial,
Annexure 1,
that not only did accused 1 make the confession, but
also that he did so freely and voluntarily. The evidence of
the alibis
must therefore be false.
The Court has found that the State witnesses, Luyanda
Mabhongo, Nofinish Kobo, Olwethu Feke and Madoda Madikiza were sound
and
truthful witnesses and that their evidence negates the alibis.
The so-called alibis were never put to these witnesses in
cross-examination. All that was put to Luyanda Mabhongo was,
at p.259: “Accused No.1 will testify that he was sick
on 24
April 2007”.
The court has found that accused 1 has been an
untruthful witness and his evidence in respect of alibis must be
rejected as false.
In addition to being poor witnesses, both the mother
and sister of accused 1 are naturally intent on keeping him out of
prison.
Their evidence must therefore be viewed with
suspicion,
The court will now consider the evidence of the
witnesses who testified about the alibis, other than that of accused
1, which has
already been dealt with above.
Mrs Z.P. Zibi, the mother of accused 1, testified that
she is very concerned about the future of her son, accused 1.
She also testified that after accused 1 awoke on the
morning of 23 April 2007 (count 1 – Ikwezi), he told the
witness that
he was going to attend a case he had in the High Court,
Mthatha. When he returned, he said he was not feeling well and
he
slept. The witness does not know where accused 1 was on that
day.
On the following day, 24 April 2007, (count 2 and 3 –
Msengeni Supermarket, Willowvale) the witness advised accused 1 to
see
a doctor. She requested his sister to give him money so
that he could do so. He left in the morning and came back in
the afternoon, with the medical certificate, Exhibit JJJ. The
witness believes, due to the medical certificate, that he went
to see
a doctor on 24 April 2007.
She testified that the medical certificate was not
handed to her son’s employer, but instead kept by her on her
person since
2007. This latter statement seems palpably false
and is in fact contradicted by the evidence of her daughter, who
testified
that the certificate was kept in a file at their home.
It is noteworthy that the employer was not called to testify on this
issue.
The witness does not know where accused 1 was on 25 May
2007 (counts 4 and 5 – Just Right, Mthatha),
On 24 June 2007, (counts 9-13 – Port St Johns
road) the witness had a mini-party for her youngest son, Sive Zibi,
who was
born on 25 June 2001. On the following day she sent
accused 1 to buy a birthday present for Sive. He did so and
when
she came back from work on that day the present was there.
She does not know when accused 1 left home on that day, nor when
he
came back. None of those at the party was called to testify.
When cross-examined this witness told blatant untruths.
In the first instance she testified that when she was told to come
to
court, she was not told what she would testify about. She never
consulted with accused 1’s legal representative,
Advocate
Gabavana, before she testified. She met him at court, but they
only greeted one another. It came as a surprise
to her when she
heard in the witness box what she had to testify about. The
court knows that Advocate Gabavana is a conscientious
practitioner,
who, before every witness he called, requested time to consult with
that witness. The evidence that he called
this witness to
testify without first having precognised her, and that she was never
told what she would testify about, is so improbable
that it is
rejected out of hand.
The next improbable evidence the witness gave was that
since the police told her that her son was wanted for murder,
although she
visited him often in prison, she never asked him why he
was detained. Once again, this is so improbable as to be
totally
unacceptable.
Then she testified that despite her son having been in
custody for four years, she does not know if he is facing serious
charges.
Her evidence about why accused 1 was sent to buy a
birthday present for a six-year-old boy, is also unimpressive.
When asked
why she, the mother, did not buy the present, she replied
that she did not have enough money to do so. She did, however,
have enough money to hold a party, and her son enough to buy the
present. Her daughter also had money. Not only does
it
appear that the witness is being untruthful in this respect, but the
whole question of a single man having to buy a birthday
present for a
six-year-old boy, whose mother and adult sister are available to do
so, seems fraught with improbabilities.
So too is the fact that
the birthday present was only bought on the day after the birthday
party was held.
The most glaring defect in the witness’ evidence,
however, is that she was not told to bring the medical certificate,
Exhibit
JJJ, when she came to testify at court. She testified
that she has always, since 2007, carried the certificate with her.
Wherever she went, she carried it with her; even when she went to
work or to do shopping. Not only is this evidence ridiculous,
but it is also contrary to that of accused 1, who testified that the
witness kept the certificate in her file. Her evidence
in this
respect is totally unacceptable.
The unsatisfactory nature of this witness’
evidence, coupled with her obvious desire to protect accused 1,
leaves the court
no option but to reject her evidence.
Ms Babalwa Zibi, the sister of accused 1, is 26 years
old.
She testified that on 23 April 2007 accused 1 attended a
court case in the High Court, Mthatha.
On the following day, 24 April 2007 (counts 2 and 3),
she gave accused 1 money to go to a doctor. He returned and
showed her
a medical certificate and the medication he had been
given. This is rather surprising because Dr Ntikinca testified
that
he did not give the patient any medication. She later saw
the certificate in a file at their home.
On 24 June 2007 they had a birthday braai for Sive, and
on the following day 25 June 2007 (counts 9 to 13) accused 1 was sent
to
buy a birthday present for Sive. The witness was at work
during the day, but when she returned she saw that accused 1 had
bought the birthday present.
The witness testified that she has on many occasions
attended this court to listen to this case. She never told the
police
that accused 1 was not in Willowvale on 24 April 2007.
The witness does not know about the robberies on 25 June
2007 or 13 July 2007.
Dr Mawethu Ntikinca is a medical doctor practising in
partnership with Dr Thutha at 45 Sprigg Street, Mthatha. He
testified
that because the medical certificate, Exhibit JJJ is
written in his handwriting, he must have issued it. It reads as
follows:
Dr. M.L. Thutha & Dr. M. Ntikinca
Medical Certificate
I, the undersigned, hereby certify that
Zibi Simthembile
was examined by me on
#24-04-07
and according to my knowledge I was informed he was
unfit to work
from 24-04-07 to 24-04-07
due to illness/operation/injury
#Backache
He will resume duty on ---------
Dr. M.L. Thutha
Signed Dr. M. Ntikinca
_____________________
Signature
24-04-07
Date
Dr Ntikinca was a poor witness as he would simply not
answer the questions put to him. When asked what happened when
he examined
the patient mentioned in the medical certificate, he
would invariable answer by saying what normally happens. He
does not
remember what time he saw the patient, for how long he
examined the patient, what treatment he gave the patient, or where he
handed
the medical certificate to the patient. It is obvious,
although not surprising, that the witness does not remember anything
about how, when, or to whom he issued the certificate. He
testified that he saw the patient for the first time on that day.
One wonders how he remembers that. The next time he saw him was
when the Counsel of accused 1 pointed him out to him at court.
If that had not been done, it is obvious that the witness would not
have recognized him.
It is clear that the witness does not remember anything
that happened on that day, and that he cannot recognize the person he
examined.
He could have examined anyone who gave his name as
Simthembile Zibi.
The most disturbing factor, however, is that the witness
signed the certificate under a stamp that gives the name of his
partner
only. If the witness sees nothing wrong issuing a
certificate with this blatant falsehood, could he not also have
issued
a certificate with a false date on it?
There are also certain disconcerting aspects about the
evidence of Dr Ntikinca, who was called to the witness box on two
occasions.
When the witness testified on the first occasion it
appeared from his evidence that he had neither examined, nor treated
the patient
for specifically back ache, and that he granted the
medical certificate simply on what the patient had told him. He
then
booked him off for a day. He also gave him no medication.
The witness could not explain certain aspects of the certificate,
especially what the hash on it represented.
As the court was concerned how a medical practitioner
could issue a medical certificate without having examined the
patient, it
at a latter stage recalled Dr Ntikinca to the witness
box. The court also wished to inform the doctor that it would
send
a copy of his evidence and judgment to the Board for
Professional and Dental Practitioners, and that he could add whatever
evidence
he wished before it did so.
On being recalled to the witness box Dr Ntikinca did a
volte-face on his previous evidence. He stated that he had
examined
the patient before he gave him the medical certificate.
When the court weighs up the evidence of Dr Ntikinca
against that of Luyanda Mabhongo, Nofinish Kobo and the confession of
accused
1, it comes to the conclusion that the doctor must be
mistaken. If he examined accused 1 and gave him a medical
certificate,
that did not occur on 24 April 2007; if he examined
someone on that day, it was not accused 1.
The court has therefore concluded that due the
evasiveness of Dr Ntikinca in the witness box, the contradictions and
general uncertainty
of his evidence, and the evidence that
contradicts it, no reliance can be placed on his evidence. As
is stated above, his
evidence is rejected and that of the witness and
accused, who have stated that the accused was partaking in a robbery
on that day,
is accepted.
Yaga Qokweni is a panel beater with a workshop at
Esibangweni. He testified that in July 2007 accused 1 came to
him and requested
to assist him in his work. On a certain day,
at about 17h00, accused 1 received a telephone call from his mother
saying that
his girlfriend was in labour and that he must take her to
hospital. Accused 1 then took the witness’ motor vehicle and
drove
away. He returned with the vehicle the next morning and
later told the witness that his girlfriend had given birth.
In cross-examination the witness contradicted himself.
He told the court that when accused 1 returned he did not tell him
about his girlfriend. Later he stated that when accused 1
returned, he did tell him about her. Then he testified that
when he went to visit accused 1 in prison, he did not tell him why he
was arrested. Later he testified that accused 1 told
him that
he was arrested for robbery.
When the court enquired why he was making these
contradictory statements, he stated that it was because he did not
recall what had
happened.
He does not recall the date on which he gave accused 1
the vehicle to fetch his girlfriend. In fact, in
cross-examination
the witness became totally confused as to when
accused 1 came to him and when he took the motor vehicle.
This witness’ evidence is so contradictory, vague
and uncertain that it would be dangerous to place any reliance on it.
Sinayo Y. Feke testified that she is the sister of
Olwethu Feke. She had a relationship with accused 1 from which
a child,
Siphosethu Feke, was born on 13 July 2007.
Accused 1 is the father of the child, but before the
child was born he denied paternity. She never asked him why he
denied
paternity. All he said was that he was not the father.
She did have a relationship with another man before the child
was
born.
On 13 July 2007 accused 1 took her to a clinic at
Ngangelizwe. At first she testified that he took her to a
hospital, but
then she changed that to a clinic.
Accused 1 remained with her all night at the clinic, and
returned home with her next morning. All this evidence is
highly
improbable if, as the witness contends, accused 1 denied that
he was the father of the child.
She testified that Olwethu had lied when he said accused
1 had never denied paternity of the child.
There are many strange aspects about this witness’
evidence. Why would accused 1 have taken her to hospital and
stayed
there with her all night if it were not his child? Why
would she not have asked him why he denied paternity? Why would
she then have testified for him? Far more realistic and
probable is Olwethu’s evidence that accused never denied
paternity.
The court returns to the question: If this
evidence is true, why would accused 1 have confessed to his
involvement in the
crime (counts 16 to 18) on that day? His
confession simply destroys the veracity of the alibi.
The next witness that accused 1 called was M. Phuza, who
repairs vehicles at his home. He knows accused 1 and Nofinish
Kobo.
Accused told him that he had sold a vehicle to Nofinish
and that Nofinish was not paying him. He does not know if
accused
1 got the vehicle back from Nofinish. He knows that
Nofinish had a Mazda 323. It does not appear that this witness’
evidence takes the case any further.
The court has come to the conclusion that the evidence
of the witnesses who testified to the alibis cannot be accepted
because they
were either poor witnesses or so closely related to
accused 1 that they are clearly biased in his favour. The court
therefore
finds that the evidence itself does not prove or
substantiate that there is a reasonable possibility that the alibis
occurred.
As the court may have erred in rejecting out of hand the
evidence about the alibis, it will weigh up that evidence against the
evidence
which connects accused 1 to the various offences, and decide
which is the truth.
The evidence that must be considered when deciding the
truth of the alibis raised by accused 1 is the following:
The evidence of Luyanda Mabhongo, whom the court has
found to be an excellent witness, that implicated accused 1 in
counts 2 to
5 and 9 to 19.
The evidence of Nofinish Kobo, which corroborated that
of Luyanda Mabhongo on counts 2 and 3.
The evidence of Olwethu Feke, which proves that accused
1 was in possession of firearms and magazines.
The confession, Exhibit CCC, made by accused 1 in which
he confirms his participation in counts 2, 3, 9, 10, 11, 12, 13, 16,
17,
18, and possession of firearms and ammunition (19-21).
The late stage at which the alibis were raised.
The airtime vouchers that were found in the room where
accused 1 was arrested, which connect him to counts 4 and 5.
The firearms that were found in the vehicle at Margate,
which connect accused 1 to count 16.
When the abovementioned evidence is weighed against that
of the alibis, the court is satisfied that the latter is false and
that
there is no reasonable possibility of it being true.
Especially the confession made by accused 1 negates totally the
existence
of any alibi.
The court therefore rejects the evidence of the
so-called alibis as being untruthful and false.
Another witness called by accused 1 was Zuko Mabhongo,
whose nickname is Zuks, who is a clan brother of the State witness
Luyanda Mabhongo – their grandfathers were brothers.
He was arrested on 14 July 2007 and he is appearing in
the Regional Court, Butterworth on similar charges to those in this
court.
Zuko was a shockingly poor witness. He not only
contradicted himself on numerous aspects, but also repeatedly failed
to answer
the questions that were put to him. Under
cross-examination his Counsel, Advocate Gabavana, repeatedly objected
to simple
and straight forward questions that were being put to him.
It was obvious that Gabavana was attempting to assist the witness.
These unnecessary interjections became so frequent that the court had
to reprimand Advocate Gabavana.
The witness testified that Luyanda said he would exclude
the witness from his evidence if he paid him R3000. This was
the
second or third reason that the court had heard for the alleged
payment of the R3000. At first the witness made no mention
of
any other reason for the payment of the R3000. Later his
evidence became so confused and contradictory that the court
does not
know what his evidence boils down to. It does not know what the
threat, according to the witness, was and whether
it was made to him
or to anyone else.
He knows that Luyanda will testify in the case against
him.
During the evening of 24 April 2007 he was in the
vicinity of Elliotdale (Xhora), which is near Willowvale. When
driving home
his vehicle was stopped and he was then shot in the leg
by robbers. He was then taken by ambulance to Butterworth
Hospital,
and then later to Frere Hospital, East London. Still
later he was taken by Luyanda to Kokstad Hospital.
He testified that there is no animosity between him and
Luyanda. This is supported by the fact that it was Luyanda who
took
him to Kokstad Hospital.
The witness contends that when Luyanda testified that
he, the witness, was one of the robbers who robbed Msengeni
Supermarket on
24 April 2007, and that he was there accidentally
shot, he was being untruthful. It was sheer coincidence that he
was shot
in the same area on the same night.
It is not surprising that Zuko disputes the evidence
that Luyanda has given in this court, because it not only implicates
him in
the robberies, but will also be repeated when Luyanda
testifies against him in Butterworth. The witness’
evidence was
simply a precursor to protect himself in his own trial.
This witness was the antithesis of Luyanda in the
witness box. Whereas Luyanda was an excellent witness, Zuko was
a shockingly
poor witness. Due to this fact, and the
contradictions and improbabilities in his evidence, the court has no
hesitation in
accepting that of Luyanda, and rejecting his as false.
The court therefore accepts as true the evidence of the
State witnesses who testified against accused 1, and rejects as false
the
evidence of accused 1 and his witnesses.
Case of accused 2:
When accused 2, Sakhumzi Mvoko, testified he came across
as a very confident young man who appeared to believe that he could
handle
with ease not only all the questions he was asked, but also
those who were questioning him He at times appeared arrogant.
He was, in fact, a poor witness. He would not give
straight-forward answers to simple questions, but invariably went
into
a long and unnecessary explanation. The court will,
however, due to the serious charges against the accused, not hold his
poor showing as a witness against him, but rather consider the
content of his evidence, and on that decide its veracity.
Accused 2 testified that he was not present when the
robberies were committed at Msengeni Supermarket in Willowvale on 24
April
2007 (counts 2 and 3). He had gone to visit his father in
Lady Frere on 19 April 2007, and returned to Mthatha, where he lived,
on 24 April 2007.,
He does not know where he was on 25 May 2007; the day on
which the robberies were committed at Just Right in Mthatha (counts 4
and
5), but denies that he was present at, or involved in, those
robberies. He also denies that Warrant Officer Mdepha found a
box containing air time vouchers in the room in Margate where he and
accused 1 were arrested.
The accused does not know where he was on 25 June 2007,
but denies any involvement in the assaults and robberies that were
committed
on that day (counts 9 to 13). He also denies that he
was a party to the conspiracy to rob a Fidelity Cash Vehicle, which
was concluded at Vuyani Hotel during July 2007 (count 14). So
too does he deny involvement in the robberies on 9 July 2007
(count
15) and those on 13 July 2007 (counts 16 to 18). He was never
in possession of any firearms (counts 19 to 21).
The accused’s defence on counts 2 and 3 is an
alibi, and on the remaining counts that the witnesses who implicated
him have
all, for this or that reason, told falsehood against him.
Those witnesses are Luyanda Mabhongo (counts 2 to 5, 9 to 18 and
19,
20 or 21); Nofinish Kobo (counts 2 and 3); Kusasa Yantolo and
Maliviwe Ngqukumba (counts 9 to 13) and Madoda Madikiza (count
14).
The court will deal with each of the abovementioned
counts; the witnesses who implicated accused 2 in them, and the
reason the accused
gives for them having testified falsely against
him.
The evidence of the accused and his witnesses of an
alibi in respect of counts 2 and 3 is, for the following reasons,
clearly false:
(1) During July 2007 accused 2
made the confession, Exhibit DDD, in which he set out in detail his
involvement
in, inter alia, counts 2 and 3. The court has found
that the confession was made freely and voluntarily, and without any
undue influence – see Annexure I hereto. Once the
confession was handed in as evidence the detail therein clearly
vindicated
the court’s finding on it. No person who was
not personally involved in the events could have repeated such
detail.
The confession and an alibi cannot co-exist. If
there had been an alibi, the accused would not have made the
confession.
Luyanda Mabhongo, whom the court found to be a good
witness, testified that accused 2 was one of the robbers.
Nofinish Kobo testified that he picked up accused 1, 2
and 3 after the robbery.
The accused’s father, who was a poor witness, was
clearly being untruthful and attempting to assist his son when he
testified
about the so-called alibi.
The so-called alibi was not put in cross-examination to
any of the State witnesses, nor was it mentioned in the
trial-within-a-trial.
It was obviously an afterthought.
The court therefore has no hesitation in rejecting the
evidence of the so-called alibi, and accepting the evidence of the
abovementioned
State witnesses, who implicated accused 2 on counts 2
and 3.
Luyanda Mabhongo testified that accused 2 took part in
the robberies on 25 May 2007 at Just Right, Mthatha (counts 4 and
5).
Warrant Officer Mdepha testified that he found the stolen
airtime vouchers, which were later identified by Mahommed Waheed, in
the room in Margate where he arrested accused 1 and 2.
Accused 2 testified that Luyanda Mabhongo was a total
stranger to him, and that the first time he met him was in prison.
There,
according to the accused, Mabhongo demanded a motor vehicle
from him. When the accused refused to give him a motor vehicle,
he decided to implicate the accused on the various counts. The
accused could give no explanation for this strange behaviour
by
Mabhongo.
This evidence of accused 2 borders on the farcical, and
it is rejected out of hand. Why would Mabhongo, a total
stranger,
demand a motor vehicle from him and then implicate him in
the robberies? Furthermore, if Mabhongo was intent on doing so,
why did he implicate the accused on only certain of the counts, and
not on all the counts?
The court therefore has no hesitation in rejecting the
accused’s evidence on counts 4 and 5, and accepting that of
Mabhongo
and Mdepha.
Accused 2 testified that he did not know Kusasa Yantolo,
who identified him as being one of the robbers in counts 9 to 13.
The accused testified that on the day that Yantolo testified, when he
and the other accused went to the toilet, the prosecutor,
Advocate
Poswa, and Warrant Officer Mdepha were standing with Yantolo outside
the waiting-room for witnesses. Poswa and Mdepha
then pointed
out accused 2 to Yantolo.
Yantolo denied that he ever left the courtroom on that
day.
What makes this evidence by accused 2 improbable is that
Poswa never asked the witness, whilst he was in the witness box, if
he
could identify any of the robbers. It was the court that
asked him if he could do so, and he then pointed out accused 2.
The court therefore has no hesitation in rejecting the accused’s
version of the alleged pointing out, and rather accepting
Yantolo’s
identification of accused 2 as one of the robbers as being genuine.
Accused 2 also testified that he did not know Maliviwe
Ngukumbana, an independent witness who fetched accused 2 and 3 on the
night
that counts 9 to 13 were committed.
The court has no hesitation in rejecting the accused’s
evidence on the these counts, and accepting the evidence of Mabhongo
and Yantolo, who identified accused 2 as one of the robbers, and that
of Ngqukumana, who fetched him after the robbery.
The accused could also give no reason why the witness
Madoda Madikiza testified that he was one of the conspirators in
count 14.
Luyanda Mabhongo has proved that accused 2 was in
possession of firearms and ammunition (counts 20 or 21), and he has
not produced
licences to possess those items.
It is indeed startling to suggest that Luyanda Mabhongo,
Nofinish Kobo, Kusasa Yantolo, Maliviwe Ngqukumbana and Madoda
Madikiza,
all of whom were strangers to accused 2, had for no reason,
or the alleged flimsiest of reasons, testified against him. The
court finds these allegations so improbable that it has no hesitation
in rejecting the evidence of accused 2 and his witnesses,
and
accepting that of the aforesaid State witness.
It therefore finds that the evidence proves that accused
2 committed, with others, also the offences set out in counts 4 and
5,
and he is convicted also on those two counts.
The court wishes to stress at this stage that it is not
incumbent on an accused person to satisfy the court why a State
witness
has testified falsely. If, however, an accused person
does not know of any reasons why a witness gave false evidence, and
there appears to the court to be no reason why he should have done
so, then it becomes highly improbable that his evidence is false,
and
the court can find that it is indeed not false
Evidence of accused 3
When accused 3, Odwa Sithole, testified he confirmed his
plea of not guilty on all the counts and stated that all the
witnesses
who had testified against him had given false evidence.
He then gave reasons why each witness had done so. As has been
stated above, it is not necessary that an accused person furnish
reasons why a State witness has given false evidence, but if he
does
so, the court is entitled to consider the validity of such reasons.
In the case of accused 3 the court has, due to the
futility of his denial of the obvious, e.g. denial of his finger
prints discovered
by an expert, and the improbability of the reasons
he has given for the various witnesses testifying against him, come
to the conclusion
that he is being untruthful and simply
manufacturing evidence in an attempt to save his own skin. The
court has therefore
decided to reject in toto the evidence of accused
3.
The first witness that accused 3 contended had given
false evidence against him was Luyanda Mabhongo, who testified that
the accused
had taken part in the offences set out in counts 9 to 18,
and 20 and 21.
Accused 3 testified that whilst he and Luyanda Mabhongo
were in the police cells the latter said to him that if did not want
to
be implicated in the offences he should pay Mabhongo money, so
that he could obtain an attorney. The accused refused to do
so
and that is why, according to him, Mabhongo gave false evidence
against him. This so-called reason for Mabhongo giving
false
evidence is so improbable as to be rejected out of hand. What
further negates this so-called reason is that Mabhongo
had already
made a confession in which he had implicated accused 3 and others in
the offences. Furthermore, Mabhongo did
not implicate accused 3
on all, but only on certain of the counts.
The next witness whose evidence accused 3 maintained was
false, was Nofinish Kobo, who testified on counts 2 and 3. He
testified
that on 23 April 2007 accused 3 telephoned him and
requested that he take accused 3 and others on an inspection to
Willowvale.
This Kobo did, and on the next day, at the request
of the accused, he went to Willowvale and informed accused 3 by
telephone when
the cash-in-transit vehicle approached.
Accused 3 stated that Kobo was a complete stranger to
him and he presumes that he gave false evidence against because he
believes
that people in the taxi industry do that kind of thing.
He knows of no other reasons why Kobo should have testified falsely
against him.
This so-called reason for Kobo giving false evidence is
ridiculous, and it is rejected.
Mbuyiselo Xishibana corroborated the evidence of Luyanda
Mabhongo that accused 3 was one of the robbers on counts 4 and
5.
He identified accused 3 as one of the persons who had robbed
him. Accused 3 denied that the witness had seen him at the
robbery.
These witnesses evidence is also corroborated by the
police evidence that airtime vouchers were found in the possession of
accused
3 in Cape Town. Accused 3 contends that Mbuyiselo
identified him because he heard about him in the media.
Luyanda testified that accused 3 was one of the
perpetrators of counts 9 to 13. This evidence was substantiated
by the finger-print
expert, Captain Mjacu, who lifted the
finger-print of accused 3 from an empty Coca-Cola bottle that was in
the robbers’ vehicle.
All that accused 3 could say to
this evidence was that his finger-print was not found on the bottle.
This contention, in
view of the overwhelming and scientific evidence
that it was found on the bottle, is simply ridiculous.
Accused 3 also denied the truth of the evidence of
Maliviwe Ngqukumba, a complete stranger to him, who testified that on
the night
of the offences in counts 9 to 13, accused 3 telephoned him
to pick him and accused 2 up from the vicinity of the crimes.
The accused does not know why Maliviwe testified falsely
against him, but once again presumes that he did so because “members
of the taxi rank do this kind of thing.”
Accused 3 testified that he saw Madoda Madikiza, who
corroborated Mabhongo’s evidence that accused 3 was one of the
conspirators
on count 14, for the first time when he testified in
court. The accused does not know why he, a complete stranger,
testified
against him.
Accused 3 knows nothing about counts 15, or 16 to 18.
He also denies his guilt on counts 19 to 21.
The accused also denied that he pointed out anything to
Captain Ndzendevu and Constable Williams, and that their evidence
that he
did is so false.
The abovementioned State witnesses, Luyanda Mabhongo,
Nofinish Kobo, Mbulelo Xishimbana, Captain Mjacu, Maliviwe Ngqukumba,
and
Captain Ndzendevu, all made a good impression on the court when
they testified, and there is no reason to reject their evidence.
The court therefore, for that reason and because it rejects the
so-called reasons given by accused 3 why the witnesses testified
against him, accepts the evidence of the State witnesses and rejects
the denial of that evidence by accused 3.
Accused 3 will therefore be convicted on counts 2-5,
9-18, and 20-21.
Evidence of accused 4
Accused 4, Bongani Same, testified that on 2 June 2007,
whilst working on a Kombi motor vehicle, it fell on and fractured his
leg.
He was taken to various hospitals.
He added that on 14 July 2007 he was sleeping with his
girl friend, Unathi Madyibi, in a bed in his room at Bhongweni
Township in
Kokstad. Gcobani Mabhongani was sleeping on the
floor next to the accused’s bed.
At about 12 p.m. Warrant Officer Mdepha and other
policemen came to the room and questioned the three occupants.
In his evidence
Mdepha at first stated that only the accused and his
girl friend were in the room, but later he corrected his evidence and
stated
that there was also a third person in the room.
Mdepha stated that he found a .38 pistol under the
accused’s pillow. It was put to Mdepha that he had found
the pistol
under the bed.
Accused 4 denied that the pistol belonged to him.
He testified that it was found under the bed and that it could have
been
the property of Gcobani. As this is a reasonably
possibility the court must give the accused the benefit of the doubt
and
find that it has not been proved beyond reasonable doubt that
accused 4 was in possession of the firearm.
Accused 4 denies the evidence of Luyanda Mabhongo, who
testified that accused 4 was involved in only the robberies referred
to in
counts 1 to 3. As all the accused have been acquitted on
count 1, the court need deal, in respect of accused 4, only with
counts 2, 3, 20 and 21.
Mabhongo testified that on 24 April 2007 he and accused
1, 2, 3 and 4, and others, went to the Msengeni Supermarket and
robbed it
and the security guards who were there. Accused 4 was
armed with a .38 pistol and he gave Mabhongo .38 bullets.
Mabhongo
stated specifically that accused 4 was not present at any of
the other robberies.
Luyanda Mabhongo was a total stranger to accused 4, who
met him for the first time when they were incarcerated in the cells.
Accused 4 testified that in the cells Mabhongo told him
that the police said that he should admit his guilt and then
‘incriminate’
the other accused. He also told
accused 4 that if he and the other accused did not each pay him
R3000, he would implicate
them in the offences. He, accused 4,
refused to do so and he believes that is why Mabhongo gave false
evidence against him.
This evidence by accused 4 is not only highly
improbable, but there is also the following evidence that refutes
it. It was
not put to Mabhongo in his cross-examination.
Why would a total stranger make demands of this nature? If it
were true,
why would Mabhongo have implicated accused 4 in only some,
and not all the offences? Furthermore, Mabhongo had already
made
a confession to the police in which he had implicated accused 4
in counts 2 and 3?
It seems that all the accused have together concocted
this so-called reason for Mabhongo’s testimony against them.
The
version has grown as the trial has proceeded. At one stage
only a motor vehicle was demanded, then a motor vehicle and R3000
was
demanded; then R3000 was demanded from each of the accused. The
latest edition to the so-called threat is that the police told
Mabhongo to incriminate the other accused, and that R3000 was
demanded from each of the accused.
The court therefore finds that the so-called reason
given by accused 4 for Mabhongo testifying against him is false and
it is rejected.
Luyanda Mabhongo was an impressive witness and his
evidence is accepted and that of accused 4 is rejected. He will
therefore
be convicted on counts 2, 3, 20 and 21.
Evidence of accused 5
Accused 5, Mthuthuzeli Sisilana, testified that Luyanda
Mabhongo gave false evidence when he testified that accused 5 had
taken
part in the offences set out in counts 9 to 18 and 20 and 21.
Mabhongo was a total stranger to accused 5, who met him for
the first
time after they both had been arrested and were in prison. It
was then that Mabhongo demanded R3000 from the accused,
failing which
he would implicate him in the various offences. The accused did
not pay Mabhongo any money, and he believes
that is why Mabhongo gave
false evidence against him.
As has been stated above, this so-called reason for
giving false evidence is so improbable that the court has rejected
it.
Why would a total stranger make such demands and then give
false evidence? If the threat were true, why did Mabhongo
implicate
accused 5 on only certain, and not all the counts?
The fact that Mabhongo had already made a confession that involved
accused 5 also makes the so-called threat highly improbable.
Luyanda Mabhongo’s evidence is corroborated by the
evidence of Warrant Officer Mdepha, who testified that he found the
firearm,
Exhibit 11,in a motor vehicle in which accused 5 was a
passenger. As is stated above, Andile Somkhebe has testified
that
Exhibit 11 was taken from him in the robbery referred to in
count 16.
The court has already found that no reliance can be
placed on the evidence of Ayanda Majeke, who testified that accused 5
was in
possession of Exhibit 11, and that he offered it to him sale.
Accused 5 has testified that he believes that Ayanda
Majeke, whose evidence he maintains is false, testified against him
because
he had an affair with Ayanda’s girlfriend, Pamela.
He does not know her surname.
Madoda Madikiza testified that accused 5 was one of the
participants in the conspiracy referred to in count 14. Madoda
was
a total stranger to accused 5, who does not know why Madoda
testified against him. Madoda also testified that accused 5 was
not present when the conspirators met again on the following day.
The court has no reason for not accepting Madoda’s
evidence as
being the truth.
The court therefore accepts the evidenced of Luyanda
Mabhongo, Warrant, Officer Mdepha and Madoda Madikiza, and rejects
that of
accused 5. He will therefore be convicted on counts 9
to 18 and 20, and 21.
The prosecutor, Advocate Poswa, has submitted that the
State witnesses were good witnesses and that their evidence should be
accepted;
that their evidence is supported by the confessions the
accused made; that the defence witness were poor witnesses; and that
the
alibis were manifestly untruthful afterthoughts that were never
put to the State witnesses. He submitted that the accused
should be convicted on the counts set out hereunder.
When counsel for accused 1 and 2, Advocate Gabavana,
addressed the court, made the following general submissions:
Section 208
of the
Criminal Procedure Act, 51 of 1977
and the cautionary rule relating to single witnesses, are applicable
to this case.
The court has to consider the possibility of an error
of identification by a single witness – R v T,
1958 (2) SA
676(A).
An accused person is entitled to remain silent.
There is no duty on an accused person to prove the
truth of an alibi. If on all the evidence there is a
reasonable possibility
that the alibi evidence is true, it must be
accepted – R v Biya 1952(4) SA 514(A).
When the police arrest an accused person they must
enquire whether he has an alibi.
The accused did not tell the police that they had
alibis because they were not given an opportunity to do so.
The prosecutor ‘harassed’ the defence
because he did not tell them who the next witness would be .
Due to (7) above, the alibis were not put to the
witnesses.
The police should have shown the accused the airtime
vouchers and two firearms they found in Margate when they arrested
accused
1 and 2.
The police should have taken the said vouchers to the
Margate police station
The court will refer to the abovementioned submissions
by Mr Gabavana under the same numbers as above.
The court is fully aware of the cautionary rule
relating to single witnesses, and it has applied it to all single
witnesses in
this case. Although the main witness for the
State, Luyanda Mabhongo, was at times a single witness on
identification,
his evidence has in general been confirmed by
numerous other witnesses, and by the confessions of the accused.
The court
therefore has no hesitation in also accepting his evidence
on the few occasions that it, or his identification, is that of a
single witness.
The court applied this principle and is satisfied that
Mabhongo did not err in his identification. He had ample time
and
opportunity in which to identify the accused persons.
This principle is trite law. It is, however, also
trite that if an accused person wishes to rely on an alibi, he must
disclose
the alibi as soon as possible. He must also put his
alibi to the witnesses. The accused in this case did neither.
The court applied this principle and came to the
conclusion that on all the evidence – especially the
contradictory evidence
of the defence witnesses; the fact that they
were never put to the State witnesses; and the confessions made by
the accused –
that there is no reasonable possibility of the
so-called alibis being true.
This is required neither by law, nor by logic.
The converse seems to apply. If an accused has an alibi, that
is surely
the first thing he should tell the police when he is
arrested. The accused in this case did not only fail to do so,
but
instead, when arrested, made confessions.
When one realises that the accused had time to make
confessions, this submission becomes farcical.
The court fails to understand how the Prosecutor
“harassed the defence. The prosecution timeously gave
the defence
copies of the statements of all the State witnesses;
long before they were called to the witness box. Furthermore,
the
court granted Counsel an adjournment after each State witness
had testified in chief in chief, to enable them to consult with
their clients before commencing their cross-examination.
This submission is, with respect, also farcical.
The police could possibly have shown the accused the
airtime vouchers, but there is nothing sinister in the fact that
they did
not. The vouchers were returned to the owner, Waheed
Mohammed, who identified them as the stolen vouchers. The
accused
were not prejudiced by not being shown the vouchers, and
they could at any time have requested to see them. The
firearms
were exhibited as exhibits in court. If the defence
wished to carry out tests on them, they could have applied to the
court
to do so.
As the offences were committed with these items in the
jurisdiction of this court, it does not agree with this submission.
If the court is wrong in this finding the accused were not
prejudiced in any way.
Counsel for accused 3 and 4, Attorney Mankanku, referred
to the statement made by Luyanda Mabhongo on 22 June 2008, Exhibit A,
when
he turned State witness. In it he stated that that accused
4 was present at the robberies in counts 4 and 5. In his
evidence in court, however, he denied that accused 4 was present at
those robberies.
This appears to have been the only contradictions the
witness made in his two statements and his evidence in respect of the
identity
of those present at all the robberies.
It is noteworthy that in Exhibit B, his confession,
which was made on 31 July 2007 i.e. before Exhibit “A”
was made,
he does not mention accused 4 having been one of those
present at that robbery.
It would therefore appear that his including accused 4
in Exhibit
“A” was a human error on his part, which
he was quick to rectify in his evidence. The fact that he did
so, proves
his honesty. The court is satisfied that the witness
was not purposely dishonest when he made this error. There is
also the possibility that Exhibit “A” had been wrongly
recorded.
Mr Mankanku also submitted that because Luyanda Mabhongo
was the only witness who testified that accused 4 was at the Msengeni
Supermarket
robbery, he should be acquitted. The court agrees
that Nofinish Kobo did not identify accused 4. This was
possibly
because Nofinish did not know accused 4. For the
reasons set out above, the court will, however, accept the
identification
of accused 4 by Mabhongo, despite his being the only
witness to do so. As stated above, there is ample evidence that
corroborates
and proves him to be a truthful witness.
Mr Mankanku also submitted that because accused 3 was on
the back of the vehicle in which the Coca-Cola bottle was found, his
finger
prints could not have been found on it. Therefore that
evidence must be false.
The court disagrees with this submission. The
bottle could have been passed from person to person, furthermore, the
identification
was a scientific finding.
Mr Mankanku also submitted that as Mbuyiselo Xishibana,
who identified accused 3 as one of the robbers on counts 4 and 5,
never
told the police that he could do so, his evidence must be
rejected as false. How was he to know that he could do so, and
when was he to tell the police? Furthermore, if he was being
untruthful, why would he identify only one accused?
Lastly, Mr Mankanku submitted that because the Counsel
of accused 3 and 4 had changed before the trial began, they did not
know
what they had told their counsel. This is the version of
the accused, all adult men, and it is simply not worthy of serious
consideration.
The court has accepted the submission by the Counsel for
accused 5, Mr Bahle, that the evidence of Luyanda Majeke must be
rejected.
All the counsel for the accused have contended that
there are certain discrepancies between the evidence of Mabhongo and
Madoda
Madikiza. Mr Poswa has disputed that there are any.
The main issue is that both witnesses state that accused 1, 2, 3
and
5 were present when the conspiracy in count 14 was formed, and that
accused 4 was not present.
Counsel Bahle has submitted written argument which the
court received only yesterday, in which he seems to submit that
Luyanda Mabhongo
and Madoda Madikiza contradicted one another.
Madikiza testified that after he left accused 2, 3 and 5
at Sidwadweni, he returned home so as to leave his vehicle there.
He then hitch-hiked to Maclear, where he saw the Fidelity cash
vehicle leaving. He then telephone accused 3.
Luyanda Mabhongo testified that there were six in the
vehicle that went to Tsolo – himself, accused 1, 2, 3, 6 and
Gcina.
He disputed they were ever at Sidwadweni.
The court fails to understand how this can be termed a
contradiction. Mabhongo and his group were acting totally
independently
from Madikiza. They went to Maclear and Tsolo in
different ways and never seemed to have joined up with one another.
They were therefore testifying about different events.
Mr Bahle’s submission is therefore rejected.
The court will now consider on which counts, if any,
each accused must be convicted.
Count 1
The Prosecutor has submitted that the evidence proves
the guilt of accused 1 on counts 2 to 5, 7 to 18, and 20 and 21.
The
court agrees with this submission, save that it doubts whether
the evidence proves counts 7 and 8 against accused 1, beyond
reasonable
doubt.
The evidence of Luyanda Mabhongo has proved that accused
1 was one of the perpetrators of the offences specified in counts 2
to
5, 9 to 18, and 20 and 21. Luyanda, however, admitted
that he was not present, and knows nothing about the offences
referred to in counts 7 and 8.
Although the court is quite prepared to accept, without
any corroboration, Luyanda’s identification of accused 1 on any
of
the various counts, his evidence is confirmed by the evidence of
the victims who proved that the various offences were committed,
and
also by the evidence of the following witnesses, which connects
accused 1 to the various counts.
Counts 2 and 3
Nofinish Kobo, who picked up accused 1, 2 and 3 after
the robbery, and Olwethu Feke, to whom accused 1 took firearms.
Counts 4 and 5
Warrant Officer Xolile Mdepha, who found the stolen
airtime vouchers in the room where accused 1 and 2 were sleeping in
Margate.
Counts 7 and 8
These counts refer to two armed robberies at Ntsika
Locality, Tsolo on 6 June 2007, in which Zola Tshayingca, Mxolisi
Siyephu, Mzukisi
Kawe and Zamekile Mdudu were attacked in their
cash-in-transit vehicle in an attempt to rob them of their money.
Count 8
alleges that after the first attempted robbery accused 1, 2
and 3 assaulted Lusizo Yalezo and robbed him of his Opel Corsa van.
In their evidence the aforesaid victims proved that the
two offences were committed. They testified that on the day in
question
a bakkie approached their vehicle from behind and fired
shots at it. After attempting to pass their vehicle, the bakkie
rammed
it from behind. Their vehicle continued until it reached
a police road block.
Luzuko Yalezo testified that on the same day and at the
same place their vehicle was stopped by armed men who then robbed
them of
the vehicle.
Luyanda Mabhongo was not present when these two
robberies took place.
In his confession, Exhibit CCC, accused 1 has stated as
follows:
“
The second armed robbery in which I was involved
took place in Tsolo. I do not remember the month and the date,
but this year.
Martin, Bongani, Sibusiso, Sakie, Gary and I
went to Tsolo with the intention to rob Fidelity guards. We
arrived at Tsolo
but I do not know the name of the locality. We
waited for the Fidelity vehicle. It appeared and we followed it
and
we bumped it at the back. Sibusiso was the driver.
Martin and I fell down during the collision. We followed on
foot as they were chasing the said vehicle.
On our way we met them coming back with another bakkie.
We jumped into that bakkie and ran away. We took a road that
leads us to Qumbu. We went to Mthatha and they dropped us at
Sibangweni. No money was taken from Fidelity.
Advocate Poswa has submitted that despite Luyanda
Mabhongo having testified that he was not present, and knows nothing
about this
robbery, there is sufficient evidence to convict accused
in these counts. He maintains that the proof that the offences
were
committed, coupled with the accused’s confession, is
sufficient evidence on which to convict him. As the law
provides
that proof of the commission of the offence, plus a
confession in which guilt is admitted, is sufficient for conviction,
Mr Poswa’s
submission would be correct if the court is
satisfied that those requirements have been met.
The court is, however, not satisfied that the confession
of accused 1 refers to the offences mentioned in counts 7 and 8.
In the confession there is nothing to fix the time or
place of the robberies mentioned by accused 1. There is also
nothing
in it about the shots that were fired at the cash-in-transit
vehicle.
In view of the numerous of similar attacks that were
taking place at that time, the court would, if it were to find that
was the
same robbery, simply be making an assumption, without any
definite proof of that fact.
As the court can therefore not find that accused 1 was
referring to the same robbery, there is no evidence on which accused
1 can
be convicted on counts 7 and 8 and he must be acquitted on
those counts.
Counts 9 to 13
Olwethu Feke, to whom accused 1 took firearms and
ammunition.
Count 14
Madoda Madikiza, who testified that accused 1, 2, 3 and
5 were present when they entered into the conspiracy.
Counts 15 to 18
The evidence of the victims of the attacks.
Count 20 and 21
Luyanda Mabhongo has proved that accused 1 was in
possession of pistols and ammunition, and he has not produced
licences to possess
those firearms.
Mabhongo’s identification of accused 1 at the
various counts is also confirmed by the confession of accused 1,
Exhibit CCC
Accused 1 is therefore convicted on the following
counts:
Count 2 :
Armed Robbery with aggravating circumstances.
Count 3 :
Armed Robbery with aggravating circumstances.
Count 4 :
Armed Robbery with aggravating circumstances.
Count 5 :
Armed Robbery with aggravating circumstances.
Count 9-11 :
Three counts of Attempted Murder.
Count 12 :
Armed Robbery with aggravating circumstances.
Count 13 :
Armed Robbery with aggravating circumstances.
Count 14 :
Conspiracy to commit armed robbery.
Count 15 :
Theft.
Counts 16 and18: Two counts of Armed Robbery
with aggravating circumstances.
Count 17 :
Attempted robbery with aggravating circumstances.
Count 20 :
Possession of unlicenced firearms.
Count 21 :
Unlawful possession of ammunition.
Accused 1 is found not guilty and discharged on the
following counts:
Count 1 :
Armed Robbery with aggravating circumstances
(at the
close of the State case).
Count 6 :
Theft (at the close of the State case).
Count 7 :
Attempted Armed Robbery with aggravating
circumstances.
Count 8 :
Attempted Armed Robbery with aggravating
circumstances
Count 19 :
Unlawful possession of specific firearms.
Accused 2
The Prosecutor has submitted that accused 2 must be
convicted on counts 2 to 5, 9 to 18, and 20 and 21.
The evidence of Luyanda Mabhongo proves that accused 2
was one of the perpetrators of the offences specified in counts 2 to
5, 9
to 18, and 20 and 21. Luyanda’s identification of
accused 2’s involvement in these counts is corroborated by the
evidence of the undermentioned witnesses.
Counts 2 and 3
Mkhululi Kobo, who picked up accused 1, 2 and 3 after
the robbery.
Mzwandile Mtekwane testified that his firearm, Exhibt 8,
was stolen from him in count 2. It was found by Warrant Officer
Mdepha,
and other policemen, in the motor vehicle of accused 2 after
his arrest.
Counts 4 and 5
Warrant Officer Mdepha, who found a large box containing
the airtime vouchers that were stolen from Just Right, in the room in
Margate
where accused 1 and 2 were arrested.
Counts 9 to 13
Kusasa Yantolo, who identified accused 2 as one of the
robbers. Maliviwe Ngqukumba, who fetched accused 2 and 3, and
others,
on the night of the robbery.
Count 14
Madoda Madikiza, who testified that accused 1, 2, 3 and
5 were present when the conspiracy was concluded.
Counts 20 and 21
Luyanda Mabhongo has proved that accused 2 was in
possession of hand arms (pistols) and ammunition, and he has not
produced licences
to possess those firearms.
So too is Luyanda’s evidence confirmed by the
confession of accused 2, Exhibit DDD.
The court therefore agrees with the submission by the
prosecutor and it convicts accused 2 on the following counts:
Counts 2 and 3 :
Two counts of Armed Robbery with aggravating
circumstances.
Counts 4 and 5 :
Two counts of Armed Robbery with aggravating
circumstances.
Counts 9 to 11
: Three counts of
Attempted Murder
Counts 12 and 13 :
Two counts of Armed Robbery with aggravating
circumstances.
Count 14
:
Conspiracy to
commit Robbery
Count 15
:
Theft
Counts 16 and 18 :
Two counts of Armed Robbery with aggravating circumstances.
Count 17
:
Attempted robbery
with aggravating circumstances.
Counts 20 and 21 :
Unlawful possession of firearms and ammunition
Accused 2 is found not guilty and discharged on the
following counts:
Count 1
:
Armed Robbery (at
the close of the State case).
Count 6
:
Theft (at the close
of the State case).
Count 7
:
Attempted Armed
Robbery
Count 8
:
Armed Robbery.
Count 19
:
Unlawful possession
of specific firearms.
Accused 3
The Prosecutor has submitted accused 3 must be convicted
on counts 2 to 5, 9 to 18 and 20 and 21.
The evidence of Luyanda Mabhongo proves that accused 3
was one of the perpetrators of the offences offences specified in
counts
2 to 5, 9 to 18, and 20 and 21. His identification of
accused 3 in the various offences is corroborated by the
undermentioned
witnesses.
Counts 2 and 3
Mkhululi Kobo, who fetched accused 1, 2 and 3 after the
robbery.
Counts 4 and 5
Mbuyiselo Xishibana, who, when testifying on these
counts, identified accused 3 as one of the robbers. Warrant
Officer Penrose
Mzenzi, who found many airtime vouchers in the
belongings of accused 3 in Cape Town.
Counts 9 to 13
Inspector Mjacu, who found the fingerprint of accused 3
on a Coca-Cola bottle in the robbers’ motor vehicle.
Maliviwe
Ngqukumba, who picked up accused 1, 2, 3, and others, on the
night of the robbery.
Count 14
Madoda Madikiza, who testified that accused 1, 2, 3 and
5 were present when the conspiracy was concluded.
Counts 20 and 21
The evidence proves that accused 3 was in possession of
hand guns (pistols), and ammunition, and he has not produced licences
to
possess those firearms.
Luyanda Mabhongo’s evidence has also been
confirmed by accused 3 pointing out certain places where the offences
in counts
2, 3, 9 to 13, 16, 17, and 18 were committed (Exhibit TT).
Accused 3 is therefore convicted on the following
counts:
Counts 2 and 3 :
Two counts of Armed Robbery with aggravating
circumstances.
Counts 4 and 5 :
Two counts of Armed Robbery with aggravating
circumstances.
Counts 9 to 11
: Three counts of
Attempted Murder
Counts 12 and 13 :
Two counts of Armed Robbery with aggravating
circumstances
Count 14
:
Conspiracy to
commit Robbery.
Count 15
:
Theft
Counts 16 and 18 :
Two counts of Armed Robbery
Count 17
:
Attempted robbery
with aggravating circumstances
Counts 20 and 21 :
Unlawful possession of firearms and ammunition
Accused 3 is found not guilty and discharged on the
following counts:
Count 1
:
Armed Robbery (at
close of State case).
Count 6
:
Armed Robbery (at
close of State case)
Counts 7
:
Attempted Armed
Robbery.
Count 8
:
Armed Robbery.
Count 19
:
Unlawful possession
of specific firearms.
Accused 4
Mabhongo has testified that accused 4 was one of the
robbers who committed the robberies set out in counts 2 and 3.
The court
will extend to the accused the benefit of doubt in respect
of the firearm Exhibit 7, which was found in the room where he was
arrested.
Mabhongo testified that accused 4 had a handgun in his
possession and gave him ammunition.
Accused 4 is therefore convicted of the following
offences:
Count 2
:
Armed Robbery with
aggravating circumstances.
Count 3
:
Armed Robbery with
aggravating circumstances.
Count 20 and 21 :
Possession of firearm and ammunition.
Accused 4 is found not guilty and discharged on the
following counts:
Count 1
:
Armed Robbery (at
close of State case).
Count 4 and 5
: Two counts of Armed
Robbery.
Count 6
:
Armed Robbery (at
close of State case).
Count 7
:
Attempted Armed
Robbery.
Count 8
:
Armed Robbery.
Counts 9-11
: Three counts
of
Attempted Murder.
Counts 12 and 13 :
Two counts of Armed Robbery.
Count 14
:
Conspiracy to
commit Armed Robber.
Counts 15
: Theft.
Counts 16 to 18 :
Three counts of Armed Robbery.
Count 19
:
Possession of
specific unlicenced firearms.
Accused 5
Mr Poswa has submitted that accused 5 must be convicted
on counts 9 to 18.
Luyanda Mabhongo has testified that accused 5 was one of
the perpetrators of the offences specified in counts 9 to 14 and 16
to
18. He testified that although accused 5 was present at the
deliberations of count 15, he was not present when that crime
was
committed. He will therefore be given the benefit of doubt and
discharged on count 15. Luyanda’s identification
of
accused 5 as one of the participants is corroborated by the evidence
of the undermentioned witnesses.
Count 14
Madoda Madikiza testified that accused 5 was one of the
conspirators.
Counts 16 to 18
Andile Somkhebe testified that in the robbery referred
to in count 16, the robbers took his 9 mm pistol, Exhibt 11.
When Warrant
Officer Mdepha arrested accused 5 he found Exhibit 11 in
the car in which the accused was at that time. In view of the
fact
that Ayanda Majeke’s evidence cannot be relied on in
respect of counts 16 to 18, the evidence of Luyanda Mabhongo becomes
that of a single witness. The court has no hesitation in
accepting his evidence and his identification of accused 5.
Accused 5 is therefore convicted on the following
counts:
Counts
9 to 11 :
Three counts of Attempted Murder
Counts
12 and 13 : Two
counts of Armed Robbery with aggravating
circumstances.
Count
14
:
Conspiracy to
commit Robbery
Counts
16 and 18 : Two
counts of armed Robbery with aggravating
circumstances.
Count
17
:
Attempted Robbery
with aggravating
circumstances.
Count
20
:
Possession of
unlicenced pistols.
Count
21
:
Unlawful possession
of ammunition.
Accused
5 is found not guilty and discharged on the following counts:
Count
1
:
Armed Robbery (at
close of the State case).
Counts
2 and 3 :
Two counts of Armed Robbery.
Counts
4 and 5 :
Two counts of Armed Robbery.
Count
6
:
Armed Robbery (at
close of State case).
Count
7
:
Attempted Armed
Robbery.
Count
8
:
Armed Robbery.
Count
15
:
Theft.
Count 19
:
Unlawful possession
of specified firearms.
During the trial three witnesses, Luyanda Mabhongo,
Mkhululi Kobo and Madoda Madikiza, were each warned in terms of
Section 204
of the
Criminal Procedure Act, 51 of 1977
, before they
testified. The court is satisfied that they testified in a
satisfactory manner, and that they were truthful
when they did so.
They are therefore granted absolution from prosecution on the
charges specified in the indictment.
As stated during the trial, the court orders that a copy
of the evidence of Dr Ntikinca, and of this judgment, be sent to the
Medical
and Dental Professions Board for any steps it wishes to take
in the matter.
In conclusion the court wishes to extend its
congratulations to Warrant Officer Xolile Mdepha who, through his
thorough investigations,
uncovered and stopped a long series of
vicious attacks by a gang in Transkei on cash-in-transit vehicles and
their operators.