S v De Vries and Others (67/2005) [2008] ZAWCHC 36 (10 June 2008)

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[2008] ZAWCHC 36
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S v De Vries and Others (67/2005) [2008] ZAWCHC 36 (10 June 2008)

Republic
of South Africa
IN THE HIGH COURT OF SOUTH
AFRICA
CAPE
OF GOOD HOPE PROVINCIAL DIVISION
CASE NO: 67 / 2005
In
the matter between:
THE
STATE
versus
SELWYN WINSTON DE VRIES
Accused number 1
VIRGIL
LENNITH DE VRIES
Accused
number 2
JULIAN
MICHAEL VAN HEERDEN
Accused
number 3
VERNON
NOEL VICTOR
Accused
number 4
ALEX
ANNA
Accused number 5
GARY
WILLIAMS
Accused number 6
LLEWELLYN
SMITH
Accused number 7
FRANCIS
JAMES NGARINOMA
Accused
number 8
EDWARD
MOAGI
Accused number 9
DARRYL
PITT
Accused number 10
ACHMAT
MATHER
Accused number 11
JUDGMENT : 10 JUNE 2008
BOZALEK,
J:
INTRODUCTION
[1] On 24 June 2003 a truck carrying a
large consignment of cigarettes belonging to
The
British American Tobacco Company of South Africa
(hereafter referred to as “BATSA”) was intercepted and hijacked
by armed robbers near Rawsonville in the Western Cape. Most of
the
contents of the truck were loaded into another truck whilst the BATSA
driver and his assistant were removed from the scene and
later
released unharmed. Less than 2 months later, on 12 August 2003,
another BATSA truck was intercepted on the West Coast road
near
Darling. On this occasion the entire consignment of cigarettes was
stolen in the same manner. Again the driver and his assistant
were
removed from the scene but later released unharmed. A month and a
half later, on 2 October 2003, a BATSA truck was intercepted
and
robbed near Kinkelbos, outside Port Elizabeth. The entire consignment
of cigarettes was once again offloaded into a truck driven
by the
robbers and disappeared.
[2] In each case the
modus
operandi
used to stop the
BATSA truck was a bogus police vehicle equipped with a flashing blue
light and driven by persons wearing police
or traffic officer
uniforms. After flagging down the BATSA truck and making some initial
enquiry relating to the driver’s licence
or the cargo being
carried, the bogus police officials produced firearms and held up the
driver and his assistant. No trace of the
stolen cigarettes was ever
found, however, a week after the last robbery, the police conducted a
series of simultaneous raids at
a number of residences in Ennerdale,
Johannesburg. Five of the accused were arrested in this operation
and, in due course, were charged
with offences arising out of the
robberies.
[3] In subsequent weeks further
arrests were made and eventually twelve accused came before this
Court on 1 August 2005 to face a
total of 25 charges arising out of
or relating to the robberies. Whilst the bulk of the charges, namely
counts 3 to 20 were the common
law offences of theft, robbery with
aggravating circumstances, kidnapping and attempted murder, six
counts, counts 3, 7, 8, 9, 13
and 14 related to the alleged theft of
vehicles allegedly used or intended to be used in the robberies. The
three robberies, namely,
Rawsonville, Darling and Kinkelbos were the
subject matter of counts 4, 10 and 15. Each robbery was coupled with
two counts of kidnapping
relating to the driver and assistant of the
BATSA vehicle, the subject matter of counts 5 and 6, 11 and 12 and 16
and 17. There was
moreover, an additional robbery and kidnapping
count the subject of counts 18 and 19. In this instance, it was
alleged, certain of
the accused, after the commission of the
Kinkelbos robbery committed a secondary robbery, so to speak,
involving one of the original
Kinkelbos robbers and kidnapped him.
The subject matter of count 20, the charge of attempted murder, was
an alleged shooting incidents
involving a number of the accused in
Lenasia South, Vereeniging on the day after the Kinkelbos robbery.
[4] As far as statutory offences are
concerned, counts 21 and 22 deal with alleged contraventions of the
Firearms Control Act, 60 of 2000
in the form of a charge of
possession of a firearm and ammunition. The remainder of the
statutory charges, namely counts 1, 2 and
23 to 25 deal with alleged
contraventions of provisions of the Prevention of Organised Crime
Act, 121 of 1998 (hereinafter referred
to as “POCA”).
[5] Count 1 alleged that several of
the accused managed an enterprise conducted through a pattern of
racketeering activities. Count
2 charged that all of the accused,
whilst managing or employed by or associated with the enterprise,
conducted or participated in
the conduct of the enterprise’s
affairs through a pattern of racketeering activity. Count 23 to 25
charged that certain of the
accused were guilty of “money
laundering”, in contravention of s 4 of POCA, in that with
knowledge that the stolen cigarettes
were the proceeds of unlawful
activities they sold them to accused 11. Counts 23 to 25 alleged, in
the alternative, various other
statutory offences in terms of POCA.
Not all of the accused were charged with all 25 counts and at the
close of the State’s case,
in terms of s 174 of Act 51 of 1977, the
following accused were acquitted of the following charges:
Accused 1: Counts 3, 7, 13 and 14
Accused
2: Counts 3, 7, 13, 14 and 20
Accused
3, 4 and 5: Counts 3 and 7
Accused
6:
Counts
7 and 20
Accused
7
:
Count
7
Accused
8 and 9: Counts 3 and 7
Accused
10: Counts 7, 15 and 18
Accused
11: Count 1
[6] The bulk of these discharges,
namely, those on counts 3, 7, 13 and 14 related to the alleged theft
of motor-vehicles intended
to be used in the various robberies. All
of the accused pleaded not guilty to all charges and were legally
represented throughout
the trial although certain accused changed
their legal representation on one or more occasions. Ultimately
accused number 1 and 7
were represented by Adv. J Mihalik, snr,
accused 2 by Adv. S Banderker, accused 3 and 4 by Adv. L Thompson,
accused 5, 6, 8 and 9
by Adv. A Petersen, accused 10 by Adv. D
Johnson and accused 11 by Adv. J Spangenberg. Only accused 1 and 2
gave a plea explanation
or made any formal admission. Their plea
explanations were essentially the same, containing formal admissions,
inter alia
,
that the three robberies of the BATSA trucks and associated
kidnappings took place, but stating that neither accused 1 nor 2 had
any part therein. Much of the two plea explanations consisted of an
argumentative attack upon the character and credibility of a
certain
Mr. Vernon Aspeling (“Aspeling”), described as the “section 204
witness” and the allegation that he was the perpetrator
of the
offences who had falsely implicated accused 1 and 2 in such offences.
It was alleged,
inter alia
,
that Aspeling was “a self-confessed robber, kidnapper, thief,
attempted murderer and consummate liar…” but who the accused
were
convinced would “be exposed for the liar that he is during the
course of the trial”. As it turned out the allegations regarding
Aspeling accurately presaged the thrust of the defence of each
accused in the trial.
[7] In a trial lasting more than 160
court days, the State alone led the evidence of over 90 witnesses.
Accused 2, 3, 6, 7, 10 and
11 testified on their own behalf and, in
some instances, called witnesses. Neither accused 1, 4, 5, 8 and 9
testified although accused
4 called witnesses in support of his case.
THE STATE CASE
[8] The chief pillar of the State’s
case was the evidence of the s 204 accomplice witness, Vernon
Aspeling. The second pillar of
the State’s case consisted of the
records of the cell phone activity of various cell phones allegedly
used by,
inter alia
,
accused 1, 2, 3, 4, 6, 7 and 8. Through this evidence the State
sought to demonstrate
inter
alia
that the accused were
present at the scenes of one or more of the three robberies and were
in contact with each other before, during
and after such robberies.
The State also sought to introduce the cell phone records of Aspeling
to corroborate his evidence and substantiate
the case against the
accused. The cell phone evidence was contested by all of the accused.
As a consequence of this challenge by
the accused various
“trials-within-a-trial” were held. A further subject of one of
these trials-within-a-trial was the admissibility
of exhibits seized
by the police from the residences of accused 1, 2, 3, 6 and 7 in the
series of police search and seizure operations
conducted on the night
of 8/9 October 2003 when those accused were arrested. In each case
one or more cell phones were seized from
each accused’s premises.
The State sought to link such cell phones to the records of cell
phone activity allegedly linking the
accused to one or more of the
robberies. The State sought, furthermore, to strengthen such linkages
by information downloaded from
the cell phones so seized. The State
also seized certain other articles from the residences of the
accused, including motor vehicles
seized from the premises of accused
3 and accused 7, the subject matter of counts 9, 13 and 14 and, in
the case of accused 2, various
items of police uniform and police
insignia. Over and above this the State led the evidence of one or
more drivers or assistants
employed by BATSA who were the victims of
the three robberies. One such driver gave identification evidence
implicating accused numbers
4 and 7.
[9] After first dealing with certain
preliminary issues, I propose to deal with the two main pillars of
the State’s case i.e. the
evidence of Aspeling and the cell phone
evidence, separately before dealing in more detail with the evidence
in regard to each of
the accused in turn and, thereafter, the case
each such accused made out.
PRELIMINARY ISSUES
[10] The charges cover a wide
geographical area, the first two robberies having taken place within
the jurisdiction of this Court
in the Western Cape but the last two
robberies in the Eastern Cape. Seven accused hail from Ennerdale or
Lenasia in the Vereeniging
district. According to the State’s case,
the gunfight which is the subject matter of count 20 plus the
ancillary charges under
the
Firearms Control Act, counts
21 and 22,
as well as the so-called money laundering charges, counts 23 to 25,
are alleged to have taken place in the districts of
Vereeniging or
Soweto. The State thus commenced its prosecution by handing in an
authorisation in terms of
s 2(4)
of POCA, given under the hand of the
then National Director of Public Prosecutions, Adv. VP Pikoli, for
the institution of the prosecution
in respect of certain
contraventions of POCA against the accused. The scope and terms of
that authority were the subject of a full
scale challenge by the
accused to the lawfulness of the prosecution at a late stage in this
trial. A judgment was given dismissing
the challenge and it is
unnecessary for any detail to be given in that regard.
[11] A further document handed up at
the commencement of the trial and relied upon by the State was a
centralization direction in
terms of
s 111
of Act 51 of 1977 to the
effect that the proceedings against the accused be commenced in this
Court thereby conferring jurisdiction
on it. Similarly, that
direction was the subject of a legal challenge by the accused at a
late stage in the trial which was dismissed
in the judgment referred
to above.
THE EVIDENCE OF VERNON JAMES
ASPELING
[12] Mr. Vernon Aspeling was called as
the State’s principal witness and, at the request of the
prosecutor, was warned by the Court
that he was regarded by the State
as an accomplice and that he would have to answer all questions fully
and frankly in order to qualify
for indemnity from prosecution
notwithstanding that such answers might incriminate him. At the time
of giving evidence Aspeling was
a 43-year-old former driver and
business man who had recently married his second wife. He had three
children by his first wife and
lived for many years in Ennerdale
where he became a well-known businessman. Aspeling was arrested on 7
November 2003 in connection
with the Darling robbery.
[13] After a number of weeks the State
decided to use him as a State witness. Ever since that time he has
been in a witness protection
programme. Aspeling had formerly been
employed as a bus driver and had a code 14 driver’s license. He had
also in recent years
owned a night club, a bottle store and a taxi
business. He had also had a transport business, known as
Vernie’s
Transport
. The latter
business had run into difficulties and he used the night club to
finance the business. Eventually his trucks and trailers
were
repossessed and his bottle store and night club ceased trading. In
the late 1990’s he started running a shebeen, a business
he
operated without a liquor license. By 2003 it appears that he had
fallen upon hard times, comparatively speaking, and was making
a
living by selling pirated DVD’s. To a lesser or greater extent
those of the accused who hailed from Ennerdale were well-known
to
Aspeling. He had met accused 1, Selwyn De Vries, more than 12 years
previously in Ennerdale through his nightclub and other business
ventures. Accused 1 was generally known as “Man” and is a
paraplegic who uses a wheelchair. Similarly, Aspeling had come to
know
accused 2, Virgil De Vries, at the same time as he got to know
his brother, accused 1.
[14] Accused 2 was the younger brother
and had frequented his nightclub. He was known as “Viega”.
Although they had not visited
each other socially, Aspeling and
accused 2 had enjoyed a good relationship. Aspeling met accused 3,
Julian Van Heerden, through
a friend, Christopher Van Reenen, known
as “Zallie”. Their first meeting had been about a month before
the first robbery which
took place in Rawsonville on 24 June 2003.
Aspeling met accused 4 when the witness arrived in Cape Town in June
2003 shortly before
the first robbery. They were introduced to each
other at the witness’ place of temporary accommodation, the
Waterfront Suites
in Green Point. Similarly, the witness had met accused 5, Alex Anna,
at the same time at the
Waterfront
Suites
. Although there was
no actual physical introduction he had got to know him as “Mandoza”
which had been the witness’s abbreviation
for accused 5’s name,
“Mandula”.
[15] Accused 6, Gary Williams, had
been known to the witness for a number of years and had grown up in
front of him, his mother being
known as “aunty Joyce”. The
witness had never had any fall out with accused 6 who was often to be
seen in the company of accused
7, Llewellyn Smith.
[16] Similarly, Aspeling had known
accused 7 for a number of years as someone who lived in
mid-Ennerdale, the same area where the
witness used to live. He was
also known as “Wellie”. Aspeling knew accused 7’s uncle, his
late mother and his younger brother
“Roykie”. The witness first
met accused 8, Francis James Ngarinoma, in Cape Town at the time of
the first robbery. Accused 8
was accompanied by accused 5. He had not
been introduced to accused 8 and had not called him by any name.
Likewise, Aspeling had
met accused 9, Edward Moagi, at the
Waterfront
Suites
prior to the first
robbery. He had not been formally introduced to him.
[17] The witness had known accused 10,
Darryl Pitt for a number of years from the Ennerdale area. His
father, like Aspeling, had worked
for the Johannesburg City Council.
Accused 10 was a friend of Aspeling’s eldest son, Clayton and is a
mechanic who did maintenance
work on accused 1’s taxi’s.
[18] Aspeling identified accused 11 as
“Achie” whom he had not known personally but whom he had met for
the first time when he,
Aspeling, and accused 2, delivered the
consignment of stolen cigarettes to accused 11’s nursery business
in Lenasia shortly after
the first robbery.
[19] As the evidence revealed the
eleven accused formed two main groups. One group came from the
Johannesburg area and the other from
Cape Town. In the first group
was accused 1 and 2, the De Vries brothers, and their fellow
Ennerdale residents, accused 3, Julian
Van Heerden, accused 6, Gary
Williams, accused 7, Llewellyn Smith and accused 10, Darryl Pitt. To
their number can be added accused
11, whose business was in Lenasia.
The first member of the Cape Town group was accused 4, Vernon Victor,
the only white man amongst
the group and whose race is of some
significance in the evidence. The other members of the Cape Town
group were accused 5, Alex Anna,
accused 8, Francis James Ngarinoma
and accused 9, Edward Moagi, the three of whom appear to initially
hail from other countries in
Africa.
[20] Aspeling also sketched his
knowledge of other persons who played a role in the events which he
recounted. They included Jimmy
Maseko, whom he met through accused 7
and who used to keep company with Zallie, and Denzil Boyles who
originally was accused number
12 but had all charges withdrawn
against him by the State on the opening day of the trial. Aspeling
knew Boyles by face from Ennerdale
and had known his brother and
father. Aspeling also testified that he knew Clayton Paulsen very
well as a fellow Ennerdale resident
and someone who used to frequent
his nightclub. He was also a good friend of accused 7.
EVENTS PRIOR TO THE FIRST
ROBBERY
[21] About a month before the first
robbery Aspeling had been contacted by Zallie (Christoper van Reenen)
who arranged to meet him
at the taxi rank in Ennerdale. There Zallie
introduced him to accused 3, referring to him as “Jan”. He
informed him that accused
3 was in the business of buying smashed
cars in order to salvage spares and transporting them via train to
Johannesburg. That transportation
was too slow, however, and he was
now considering using a truck. Zallie knew that Aspeling had a code
14 driver’s license and had
contacts in the transport business. He
asked Aspeling whether he could hire a closed-body six-ton truck
which would be required for
two days for transportation from
Klerksdorp. There and then Aspeling phoned one Sayub Bera who was in
the transport business. Bera
asked for a deposit of R2000,00 for the
hire of such a truck provided that Aspeling himself drove it and
ensured that it was filled
with diesel. Accused 3 said little during
these discussions.
[22] The following day Zallie called
Aspeling and arranged to give him R2000,00 as a deposit for the
truck. Aspeling immediately went
to the premises of Bera’s
transport business in Lenasia and paid the deposit in return for
which he was issued with a receipt.
Later that day Zallie and Jimmy
Maseko picked Aspeling up and they went to fetch the truck, the idea
being that the trip would commence
immediately. The truck was filled
with diesel for which Zallie paid. The trip had been planned as a
two-day affair and the witness
took a change of clothing with him.
Immediately thereafter Zallie advised Aspeling and Jimmy Maseko that
they would actually be travelling
to Cape Town. Aspeling felt
aggrieved about the change of plan because it could ruin his
relationship with Bera from whom he had
hired the truck on a
different basis. Aspeling and Zallie had argued about the sudden
change of plan but Aspeling had felt that he
was in a “catch 22”
situation and reluctantly decided to make the trip to Cape Town.
Zallie said that Aspeling and Jimmy Maseko
should continue towards
Cape Town and that he, Zallie, would catch up with them at a later
stage. The truck hired had a movable loading
platform hydraulically
controlled at the rear of the truck.
[23] During the trip to Cape Town
Zallie remained in contact with Aspeling through his cell phone. He
told him to stop at the
Ultra
City
in Bloemfontein. There
the witness had found Zallie in a
BMW
vehicle belonging to accused 3, but with accused 2 driving it and
accused 1 as front seat passenger. Although Aspeling had expected
accused 3 on the trip he was surprised to see accused 1 and 2 with
him at Bloemfontein. Aspeling also refuelled the truck at Three
Sisters which Zallie paid for. Seeing accused 1 and 2 he now had
feelings of unease about the trip. Driving through the night they
reached Cape Town at approximately 09h00 on the Thursday morning
prior to the robbery and booked into the
Waterfront
Suites
in Green Point. By
Saturday, when the truck was due back, Aspeling started getting
worried and called Bera saying that he was still
in Klerksdorp
waiting for the load. Bera was angry and concerned about the safety
of the truck and Aspeling promised to ring him
later that evening.
Whilst at the
Waterfront
Suites
several of the
accused arrived at different times as well as a certain Zakkie.
Aspeling remained in the apartment but late on Saturday
night
received a text message from Zallie who arrived shortly thereafter
and asked Aspeling to accompany him somewhere in the
BMW
.
They drove to an industrial area where Zallie got out and ran through
the veld towards a building. He returned shortly thereafter
with two
firearms and bolt-cutters. By this time Aspeling was angry with
Zallie and demanded to know what was happening. They drove
to a
nightclub and gradually Aspeling eked out of Zallie that there had
been an unsuccessful break-in attempt at the building in
question.
[24] Later Jimmy Maseko told him that
they had attempted to break-in to the cigarette company but that the
alarm had gone off. Later
on the Sunday, accused 1, 2, 3, 4, 5, 9 and
Zallie had discussed a “job” that was going to be done the next
day. Aspeling had
asked for details but both Zallie and accused 1
simply told him that it would be an easy job and he should not worry.
From this point
onwards Aspeling was no longer under the impression
that he was in Cape Town to fetch spare parts for cars. Some time
later accused
3, 4, 5 and 9 said that they were going out to look for
a white
Golf
or
a white
Polo
vehicle with which to do the job on Monday.
[25] On Monday, 23 June 2003 accused 1
woke Aspeling and the others early telling Aspeling that they were
going to work now and he
must pack his kitbag. Aspeling drove the
truck alone to Montague Gardens following a
Volkswagen
Caravelle
containing other
of the accused and parked outside BATSA’s premises. Sometime
thereafter accused 1 phoned Aspeling on his cell
phone and told him
to drive the truck to the N1 truck stop
en
route
to Paarl which he did
and where he waited for some time. Accused 1 eventually called
Aspeling to return to Green Point where he and
the others were told
by accused 1 that they would follow the same plan the following
morning. Later that afternoon accused 4 arrived
in a white
City
Golf
and handed accused 3 a
small round blue light, the type used in police vehicles.
[26] Early the following morning, 24
June 2003, in accordance with the instructions he received from
accused 1, Aspeling drove the
truck directly to the N1 truck stop. He
had been given Jimmy Maseko’s cell phone and at about 07:00 was
called by accused 1 and
told to proceed along the N1.
En
route
he was passed by
accused 1, who although paralysed in his lower limbs and confined to
a wheelchair, was driving alone in the
BMW
.
The vehicle was not specially adapted for accused 1 but Aspeling
presumed that he was driving the automatic vehicle by manipulating
the pedals with his walking stick. Halfway between the Huguenot
tunnel and Worcester, accused 1 directed him, from the side of the
road, to a stationary BATSA truck on the other side of the road.
Aspeling backed his truck up to the BATSA truck. Also present on
the
scene were accused 2, 3, 4, 5, Jimmy and Zallie as was a white
Golf
with a blue light on the top of the roof. Accused 2 emerged from the
BATSA truck walking very close to its driver who appeared very
nervous. Also on the scene was a
Volkswagen
Caravelle
, maroon coloured,
apparently belonging to accused 5. Accused 4 was dressed in a blue
police uniform. Boxes of cigarettes were loaded
from the BATSA
vehicle into Aspeling’s truck. Before all the contents could be
offloaded Aspeling was told to leave and drive towards
Cape Town.
En
route
, however, accused 1
called Aspeling and told him to turn around and follow the BATSA
truck. Arrangements were made for him to meet
his accomplices at a
filling station in Worcester.
[27] When he arrived there Aspeling
met Zallie who gave him money to fill the truck up with diesel.
Accused 1 then called him and
told him to follow the road to
Robertson. Along that route he came across the BATSA truck again and
pulled off next to it. He, accused
2, Jimmy and Zallie transferred
further cigarette boxes from the BATSA vehicle to his truck. Again
this was done hurriedly without
the boxes being properly packed and
ultimately some of the boxes were left behind in the BATSA truck.
Aspeling then drove the truck
back to the
Waterfront
Suites
in Green Point and
waited some time for further instructions. At approximately 13h00
Aspeling drove his truck, following the
BMW
,
to a suburb where accused 5 stayed. Much later Aspeling identified
the house as one in Oak Street, Observatory, near the railway
line.
Aspeling spent some hours at the house in the presence of accused 1,
2, 3, 4, 5, 8, 9, Jimmy, Zallie and Zackie. At approximately
18h00
that evening the Johannesburg contingent began their return journey
to Gauteng using the long coastal route. Aspeling drove
straight to
accused 1’s house in Ennerdale to offload the truck. One hundred
and sixty three boxes of cigarettes were offloaded
and packed near
the stoep area. Accused 2 left saying that he was going to see the
buyer. Accused 2 initially said that they would
only get R2 300,00
per box of cigarettes. Aspeling intervened, however, saying that he
could get a higher price. Aspeling’s intervention
appeared to upset
accused 1 and 2. Eventually accused 1 announced that they would now
obtain R3800,00 per box.
[28] After the boxes were counted and
repacked into the truck Aspeling drove it to Lenasia following
accused 2 and 3 who were in a
gold
Golf
vehicle. Aspeling followed accused 2 to certain premises in Lenasia
which he described as a nursery. There he was instructed by accused
11’s employees to reverse into a yard where the boxes of cigarettes
were offloaded onto pallets. Aspeling himself had no direct
dealings
with accused 11 and had not known him previously. Accused 2 and 11
had emerged from the building initially and after the
offloading
accused 2 fetched accused 11 from the building and they came out
together. Accused 2 then said to him: “
Bra
Achie, ek nodig die parcel
”.
Accused 11, who was dressed in Muslim dress (a “kurta”), took a
bundle of notes totalling R10 000,00 out of his pocket and
handed it
to accused 2 who in turn handed it to Aspeling. The witness then left
the nursery to drive the truck back to
Bera’s
Transport
and paid the R10
000,00. This was the balance of the hire for six days taking into
account the deposit already paid. The rate for
the extended trip had
earlier been arranged by Aspeling with Bera in a telephone
conversation using accused 3’s cell phone. Aspeling
received a
receipt from Bera for the payment.
[29] Over the next few days Aspeling
was in telephonic contact with Zallie wanting to know when he would
be paid his share. He was
initially told that accused 11 would pay
the following day and that they had no choice but to wait. It was
arranged, eventually,
that everyone would meet at accused 1’s house
on the Friday morning. Present at that meeting were accused 1, 2, 3,
Jimmy, Zallie
and the witness. The latter three were each given R53
000,00. Accused 3 said it would be arranged that the Cape Town
contingent,
would receive their monies in Cape Town. Aspeling
complained about his share of the proceeds after accused 1 explained
that he and
accused 3 would receive an additional R10 000,00 each in
respect of hotel expenses and that a further
R10 000,00 would be held back to
replace accused 3’s tyres. He also explained that amounts would be
held back for other expenses
including lawyers’ fees.
EVENTS PRECEEDING THE DARLING
ROBBERY
[30] Shortly before the second
robbery, which took place some seven weeks later on 12 August 2003,
accused 1 telephoned Aspeling and
asked him whether he could again
hire the same kind of truck for a similar job. In response to
Aspeling’s enquiry accused 1 told
him that Zallie was just about to
reach Cape Town. Aspeling told accused 1 that he would let him know
in the morning about hiring
the truck. The following morning accused
3 arrived with the deposit for the hire of the truck and Aspeling
drove to Bera’s transport
business to make the necessary
arrangements. It was agreed with Bera that the hire rate would be the
same as had previously been
the case save that no payment would be
made for the Saturday and the Sunday. Later that afternoon Aspeling
collected the truck, picked
up accused 2 and set off for Cape Town.
Prior to departing accused 1 furnished Aspeling with a telephone
number saying that it was
accused 2’s wife’s cell phone which he
would be using. Aspeling entered the number onto his own phone.
[31] They drove through the night and
arrived in Cape Town the following morning at 08h00. Aspeling was
directed to drive to the Engen
truck stop en route to Malmesbury.
After arriving there they were joined by accused 4 and 5 in the
maroon
Volkswagen Caravelle
that had been used in the previous hi-jacking. From there they drove
to the Waterfront Suites where he met accused 6, 7 and 10. Aspeling
was upset with accused 1 over the presence of accused 6, 7 and 10
since he did not feel comfortable about their involvement. In his
eyes they were “children” whom he knew from Ennerdale and who had
respected him. When Aspeling asked accused 1 where Zallie was
he was
told that Zallie would not be with them and that he had not told
Aspeling this earlier because accused 1 knew that he, Aspeling,
would
then not have seen to the hiring of the truck.
[32] Aspeling stated that had he known
that Zallie would not be part of the trip he himself would not have
agreed to be part of the
group. When they arrived at the
Waterfront
Suites
, Aspeling recognised
a red
Jetta
and received confirmation from accused 10 that it belonged to accused
1 and 2 and had been used to bring accused 1, 3, 6, 7 and 10
down to
Cape Town. Accused 4 later arrived driving the blue
BMW
which had been used in the previous robbery. Earlier, at the Engen
truck stop accused 1 had called accused 2 to say that the job
was off
that day.
[33] That day, Friday, accused 2 said
he would be flying back to Johannesburg to celebrate his birthday.
Aspeling and accused 10 took
him to the airport that evening. On the
Saturday morning Aspeling went with accused 1, 6 and 10 for breakfast
to the Waterfront.
They used the red
Jetta
,
parking it in a bay reserved for people with disabilities. When they
returned to the vehicle its wheels had been clamped. An official
was
called who unclamped the wheels telling accused 1 that he needed a
sticker on his car to use such a bay. Later, in cross-examination,
accused 1’s counsel put it to Aspeling that his client had “bumped
into” Aspeling at the Waterfront at that time when he, accused
1
was on a trip to the Cape to source car parts. There had been no
breakfast however Aspeling denied these additional details.
[34] Returning to Aspeling’s
evidence, that same day, the Saturday, Zackie had arrived at the
Waterfront Suites and then left with
a number of the accused,
apparently to go and purchase police uniforms. They returned with
police boots, pants, shirts and illuminated
vests. There was a
discussion about who would pose as police officers and accused 1
decided that accused 4 and 6 would fulfil these
roles. Accused 3, 6
and Zackie left the apartment saying that they were going to look for
a white
Golf
or
a white
Polo
with
which to do the job on the Monday. The following day, Sunday,
Aspeling went with accused 1, 6 and 7 to the Grand West Casino
where
accused 6 and 7 applied for a “most valued guest” card (an “MVG
card”). Aspeling was present when they made their applications
and
the cards were issued to them. Later that evening accused 2 returned
from Johannesburg.
[35] The following morning, Monday,
accused 2 and Aspeling went back to Montague Gardens, parked the
truck near the BATSA depot and
waited for further instructions. At
approximately 10h00 accused 1 called number 2 and told him that the
job was off and that they
should return to the
Waterfront
Suites
. Aspeling clarified
that accused 6, 7 and 10 had not been in Cape Town earlier on the
occasion of the first robbery. Early the following
morning, Aspeling
packed his belongings and drove with accused 2 to Montague Gardens.
Accused 1 called accused 2 and told him to
swap places with accused
8. Accused 2 then got into the
Caravelle
which had been used in the previous robbery and was replaced by
accused 8 who directed Aspeling onto the Malmesbury road. En route
they were passed by accused 1 and Zackie Isaacs in a two-door silver
Audi
.
At a certain point in the road Aspeling spotted accused 10 indicating
to him to pull off the road alongside a BATSA truck the doors
of
which were already open. The
Audi
was a little further up the road whilst accused 4 was circling the
area in a white
Polo
equipped with a blue light. The
Caravelle
was parked on the
opposite side of the road. Accused 4 and 6 both wore blue police
uniforms. Accused 2 and 3 were also present as
were accused 9 and 10
who assisted in offloading the cigarette boxes from the BATSA truck
into the hired truck. When the boxes had
been transferred Aspeling
and accused 8 drove the truck back to Cape Town along the way
spotting a police helicopter hovering near
the spot where the BATSA
truck had been hijacked. Isaacs and accused 1 escorted them back to
Cape Town in the silver
Audi
driving ahead of the truck. Shortly after arriving at the
Waterfront
Suites
the
Caravelle
arrived carrying accused 2, 3, 5, 6, 7, 9 and 10.
[36] The Johannesburg contingent then
left for home, Aspeling and accused 2 driving in the hired truck.
They arrived in Gauteng the
following morning at 08h00 and followed
the red
Jetta
back to accused 1’s house. When they offloaded the cigarettes and
counted them there were again 163 boxes. Once again Aspeling
drove
the truck to accused 11’s place of business following accused 2.
There he reversed the truck into a warehouse. Accused 11
was present
for a short while and told his employees to help accused 2 and
Aspeling to offload the truck and to pack the boxes properly,
putting
the boxes of mixed cigarettes to one side.
[37] After the unloading accused 2
went back to accused 11 to collect the balance of R6 000,00 owing for
the truck hire. Aspeling
assumed that accused 11 gave accused 2 the
money because accused 2 emerged and gave this amount to the witness.
Aspeling then drove
the truck back to
Bera’s
Transport
, followed by
accused 2 in the
Golf
,
where the balance owing was
paid and together they drove back to Ennerdale. Shortly afterwards
Aspeling was contacted by accused 1
and the group met again at
accused 2’s house where each was paid R33 000,00 as his share of
the proceeds. Once again there was
dissatisfaction, this time from
accused 6, 7 and the witness, regarding the amount deducted for
expenses.
THE KINKELBOS ROBBERY
[38] Some four weeks after the
Darling robbery Aspeling was contacted by accused 1 and met him and
accused 2 at the former’s house
where they ascertained from him
that he was agreeable to participating in a similar robbery in Port
Elizabeth. Aspeling traced the
change of the location of the proposed
robbery back to a discussion that he had had with accused 2 when they
drove back to Gauteng
after the Darling robbery. They had agreed that
the next robberies should take place in the Eastern Cape – first in
Port Elizabeth
and then, possibly, East London. Some two weeks later
accused 1 called Aspeling to arrange a trip to Port Elizabeth to
scout in preparation
for the robbery. Accused 1, 2 and Aspeling drove
down to Port Elizabeth that night in the latter’s
Mercedes
Benz
. When Aspeling asked
why accused 3, 6 and 7 were not accompanying them, accused 1 said
that accused 3 had accused him (accused 1)
of robbing his aunt of R90
000,00. In Port Elizabeth they began searching for BATSA’s premises
and eventually found the depot in
the industrial area. Later an 8 ton
truck pulled out of the depot and they followed it on its route to
Alexandria. They passed the
truck alongst the route and looked for a
suitable place for the armed robbery. After finding such a location
they headed back to
Johannesburg stopping at Port Alfred along the
way and then driving through Grahamstown. It was agreed that they
would do the job
at the month end. The following Saturday accused 1
called Aspeling and told him to hire the truck to leave on the
Tuesday night for
Port Elizabeth with a view to performing the
robbery on the Thursday. On the Sunday, however, accused 3 visited
Aspeling at his home
and told him that accused 1 and 2 would no
longer be going to Port Elizabeth. Aspeling assumed that this
development had something
to do with accused 1 being suspected of
robbing accused 3’s aunt of R90 000,00.
[39] Aspeling testified that he asked
accused 3: “
What about
accused 1 and 2?
”.
Accused 3 replied: “
Moenie
oor hulle worry nie, hulle is nie ons base nie
”.
Accused 3 also said that accused 1 and 2 did not have the manpower to
do the job since the Cape Town group would no longer work
with them.
Aspeling decided to go along with accused 3’s arrangement and hired
the same truck from
Bera’s
Transport
paying a deposit
of R1500,00 on the Tuesday with his own funds. Later that day he
returned to
Bera’s
Transport
with accused 7 to
collect the truck and arranged to meet accused 3 at the Kroonvaal
Toll Plaza. Accused 7 was driving a white BMW
5 series with accused 3
as passenger. At Colesberg they stopped to fill the truck with diesel
and met up with accused 6, 7, Otto
Watson and a certain “Grant”.
It was the first occasion that Aspeling had met Grant but he knew
Watson from Ennerdale. They were
driving a new white
Golf
.
[40] In Port Elizabeth they booked
into accommodation for the night meeting up with accused 5, 8 and 9
who had travelled up from Cape
Town in a white
Caravelle
.
Someone mentioned that accused 4 was on his way up to Port Elizabeth
by bus since he was scared to travel in the
Caravelle
because it contained the equipment. Aspeling assumed that the
equipment was the blue lights and the police uniforms. At the
accommodation,
Bantry
Executive Suites
, Aspeling
booked the party in under the false name of Hokai. Before this
Aspeling had shown his accomplices where the BATSA depot
was. After
booking in Aspeling showed them the BATSA truck’s route to
Alexandria and the spot which had been chosen on the scouting
expedition as suitable for the stopping and robbing of the truck.
That night accused 2 called him wanting to know when they would
be
leaving for Port Elizabeth. Aspeling fobbed him off saying that there
was a problem with the truck and that in any event he was
busy
gambling at a casino. Accused 2 insisted on meeting Aspeling who told
him that he would not be able to make it for the Thursday.
When he
relayed the discussion with accused 2 to the rest of the group their
response was: “
Laat hulle
gaan k-k, hulle is nie ons base nie, hulle rob ons in elk geval
”.
[41] Nonetheless Aspeling believed
that accused 1 and 2 suspected that he was in Port Elizabeth because
they probably drove past his
house in Ennerdale and saw that his
vehicle was still parked in the yard. However, accused 1 also called
Aspeling that evening and
said that he was not feeling well and they
should cancel the job. Those who stayed at the
Bantry
Executive Suites
were
accused 3, 6, 7, Grant, Otto Watson and Aspeling. Accused 4, 5, 8 and
9 stayed at other accommodation. As in the previous robberies
Aspeling had his licensed firearm, a 9mm pistol containing live
ammunition, with him. Accused 3 was in charge of the operation and
instructed accused 4 and 6 to use the white
Golf
and to act as police officers. The following morning, on the way to
the site of the robbery they met at a garage along the route.
When
Aspeling pulled out of the garage the BATSA truck drove past.
[42] Accused 3 called him, saying:
“
Die ouens het klaar
gespan
”. This signified
to Aspeling that they had hijacked the truck and removed the driver
and co-driver. When he arrived at the spot
chosen for the robbery the
BATSA truck was already there as well as the white
Golf
on the roof of which was a long blue light. The
Volkswagen
Caravelle
was also on the
scene. All the cigarette boxes were offloaded from the BATSA truck
into Aspeling’s truck whereupon he began to
drive the truck alone
back towards Johannesburg following the
BMW
.
Otto was supposed to join him as passenger but climbed into the
Caravelle
instead.
[43] The route which Aspeling followed
was towards Cradock. The
BMW
was supposed to drive ahead as an escort but it went off at great
speed and he lost sight of it. As Aspeling was driving slowly up
a
steep pass a white
BMW
,
which he recognised as a friend’s vehicle, pulled alongside him
with accused 1 as front seat passenger and Denzil Boyles as the
driver. In the back of the vehicle, hanging out the window, was
accused 2 brandishing a firearm which he pointed at Aspeling and
said: “
Trek af of ek skiet
jou deur jou kop!
”. This
took place at approximately 10h00 and approximately 50 km away from
the scene of the robbery. Aspeling stopped the vehicle
and accused 2,
who was very angry, climbed in and hit him in the face with the
firearm saying: “
Vandag
hijack die hijackers die hijackers
”.
Accused 2 took Aspeling’s firearm from his kitbag, loaded it and
also took his cell phone. He instructed the witness to resume
driving
and to follow the white
BMW
containing accused 1 and Denzil Boyles. Aspeling was re-routed on to
the Queenstown route stopping occasionally to fill the truck
with
diesel or to eat. Aspeling stated that he was nervous and scared. At
some point he asked accused 1 whether the dispute could
not be
resolved in some other manner. They proceeded in convoy to
Johannesburg. At the Kroonvaal toll plaza accused 10 was waiting
in a
gold
Golf
.
Accused 1 swopped from the
BMW
to the Golf and was driven off by accused 10.
[44] Accused 2 then instructed
Aspeling to follow Denzil Boyles in the
BMW
to a
Formula
1
hotel in Alberton. All
three booked into the same room at the hotel using accused 1’s
credit card. In the room Aspeling begged
accused 2 to be allowed to
make a call to his girlfriend and was allowed to do so. Accused 2
slept alongside Aspeling with a firearm
under his pillow whilst
Denzil Boyles slept on a bunk above. They left the hotel early the
next morning stopping on the highway short
of Johannesburg when
accused 2 remembered that he had left Aspeling’s firearm behind in
the hotel room. He ordered Denzil Boyles
to drive back to the hotel
to fetch the firearm and the truck driven by Aspeling on the
instructions of accused 2 took the Comaro
off ramp from where he was
directed to the house of a relative of accused 2.
[45] Early that morning, outside the
house, after a conversation between accused 2 and the relative, a
person who was unknown to Aspeling,
he was instructed to reverse the
truck through the gate into the property. Accused 2 and the witness
then loaded the cargo of stolen
cigarettes into the garage. Denzil
Boyles arrived in time to assist with the offloading and handed
Aspeling’s firearm to accused
2. Aspeling then heard accused 2
apparently speaking to accused 11 on his cell phone. He overheard
accused 2 say: “
Bra Achie,
as die trok loop sal ek jou bel dan moet jy jou trok stuur om die
cargo te kom aflaai
”.
Aspeling was then instructed to follow Denzil Boyles in the
BMW
with the truck, accused 2 remaining behind and retaining his firearm
and cell phone. Some 20km short of Frankfort in the Free State
Denzil
Boyles turned around leaving Aspeling with the truck low on fuel and
with little money, some 200km from Johannesburg.
[46] The witness drove into Frankfort
and called accused 1 from a public phone in a café. Accused 1 told
him to call his accomplices
himself and that he would have to see.
The previous day accused 1 had told him that he should tell his
accomplices that he had been
hijacked by black men. Aspeling then
called accused 3 and 7 on their cell phones. They told him to wait
there and that they were
on their way to him. Accused 3, 6, 7, Otto
and Grant eventually arrived in accused 7’s
BMW
.
Accused 3 gave Aspeling money to fill the truck with diesel which
Aspeling then began to drive back towards Johannesburg with Otto
as a
passenger. After a short while Otto received a telephone call and
told Aspeling to stop the truck. Otto then pulled Aspeling
out of the
truck and ordered him to climb into the
BMW
.
They all drove off in the
BMW
leaving the truck behind unlocked.
[47] Accused 6 threatened to shoot
Aspeling and cocked his firearm. Aspeling was pressed to tell the
truth regarding what had happened
to the cargo of cigarettes and he
then explained how he had been hijacked by accused 1, 2 and Denzil
Boyles. The witness was asked
to take his accomplices to where the
goods had been offloaded. He directed them to the dwelling in Comaro
but when they looked through
the windows of the garage there was no
sign of the cigarettes. They then proceeded to fetch accused 3’s
Golf
and the two vehicles left for accused 11’s nursery in Lenasia.
There they found accused 11 and told him that they were there for
the
cigarettes that accused 2 had delivered to him or for their money.
Accused 11 denied that accused 2 had given him any goods and
told
them that accused 2 had called him in the morning saying that he had
a “parcel” but that he would only deliver it to him
during the
course of the day. Accused 11 then used his cell phone to call
accused 2 and explained the problem. Accused 2 apparently
asked to
speak to Aspeling and accused 11 handed the phone to him. Aspeling
then told accused 2 that they were there for the cigarettes
or their
money. Accused 2 suggested that they come to Ennerdale to meet at
accused 1’s house.
[48] Aspeling, accused 7 and Grant
left for accused 1’s house in the
white
BMW
with accused 3, 6 and
Otto in the
Golf
.
En route they spotted accused 1, 2 and Denzil Boyles in the red
Jetta
travelling in the opposite
direction. That vehicle stopped, u-turned and parked next to the
stationary
BMW
.
Accused 2 jumped out of the
Jetta
,
screaming and threatening to shoot Aspeling’s party. Accused 7
appealed for the dispute to be settled in a peaceful manner. Accused
2 remained in a fury, however, whilst accused 1, seated in the red
Jetta
was brandishing a firearm. The
Golf
carrying accused 3, 6 and Otto then pulled up whereupon accused 1
shot the front tyre of the
BMW
.
As Aspeling tried to get out of the vehicle accused 1 fired a shot
towards him but missed him. Accused 6 ran into the middle of
the
street armed with a firearm and began shooting in the direction of
the red
Jetta
.
Accused 2 was shot and lay on the ground screaming with pain. A large
police truck driven by a policeman with two women passengers
arrived
on the scene and was noticed by the participants in the shootout.
[49] Accused 7 urged Aspeling and
others to drive away saying that he would tell the police that
accused 1 and 2 had tried to hijack
them. Aspeling and Grant climbed
in to the red Jetta in which accused 1 was seated and immediately
drove off towards Ennerdale with
the police truck in pursuit. Sitting
in the rear Aspeling noticed a firearm and was instructed by accused
1 to throw it out the window
which he did. Otto stopped the vehicle
outside accused 1’s house and both fled leaving accused 1 there.
Aspeling went to his friend’s
place of business, borrowed a car and
then arranged for a friend to take him to Frankfort. There he
collected the truck where he
had left it and drove it back to Bera’s
Transport, leaving it there.
[50] The following day Aspeling made
contact with accused 3 and met him at his aunt’s house where he
found accused 4, 5 and 9. Negotiations
began between accused 3 and 7
on the one hand and accused 1 for their group’s share of the
proceeds of the Kinkelbos robbery. Accused
3 and 7 told the others
that accused 1 was waiting for accused 11 to bring money. At accused
1’s insistance it was agreed that
R60 000,00 of the proceeds would
be held back to cover accused 2’s medical expenses at Lenmed Clinic
where he had been admitted.
Accused 3, 4, 5, 6, 7, 9 and Aspeling
continued to wait for their share of the proceeds.
[51] On the Saturday evening they were
told that accused 1 had given R100 000,00 and Aspeling received R20
000,00 thereof. A day or
two later Aspeling received another R4
000,00 which he had to use to settle the truck hire costs. Some days
later, anxious to recover
his firearm and cell phone, Aspeling called
accused 1 who was upset about the loss of his own firearm which
Aspeling had thrown out
of the car on his instructions. He eventually
agreed to return Aspeling’s firearm and cell phone to him in return
for the payment
of R1 000,00 which Aspeling reluctantly paid. He
received his firearm and his cell phone minus the ammunition and his
sim card. From
his proceeds of the robbery he had paid
Bera’s
Transport
R4 500,00.
Thereafter he had no further contact with the accused until Otto
Watson called to tell him that accused 1, 2, 3, 6, 7
and Clayton
Paulsen had been arrested. For some time Aspeling tried to evade
arrest by staying with different family members. Accused
3, 6 and 7
contacted him from prison and asked him to purchase airtime for them
which he duly did and rang through the pin numbers.
Accused 3 told
Aspeling not to panic because they would not implicate him.
[52]
On
or about 7 November 2003 Aspeling was arrested at his residence on
charges relating to the Darling robbery and he was warned of
his
rights. He surrendered his firearm and his cell phone to the police
and was taken to Germiston police station where he was charged
and
detained. In his initial interrogation by the police he denied any
knowledge of the robbery but asked to consult his lawyer,
a Mr. David
May. On the latter’s instructions he made detailed notes of his
involvement in the robberies which were reduced by
his attorney to
affidavit form. These affidavits were eventually put before the
police and the Director of Public Prosecutions and
after some time
Aspeling was told that the State had decided to use him as a s 204
witness. He co-operated with the investigating
officer, Insp.
Heydenrich, Supt. Du Plessis who was handling matters in Gauteng and
Heydenrich’s successor, Insp. Jonker. During
the following weeks
Aspeling was taken by the police to Port Elizabeth to identify
various sites and to various locations in the
Western Cape and
Gauteng.
[53] After his appearance in the
Malmesbury magistrates’ court charges were withdrawn against
Aspeling and he was placed in a witness
protection programme. Amongst
the places to which he was taken by the police were
Bantry
Executive Suites
in Port
Elizabeth, the Waterfront Suites in Green Point and the house in
Observatory, Cape Town occupied by accused 5. Although initially
uncertain where exactly it was, Aspeling eventually found the house.
There he identified accused 8 who was arrested. Aspeling was
shown a
wide range of exhibits by the prosecutor including many photographs
taken at various scenes involved in the robberies and
of vehicles
confiscated in Gauteng. Amongst the exhibits he identified was an
extract from the register of
Bantry
Executive Apartments
under
the name “Hokai”, photographs of the guardhouse at accused 11’s
business premises, aerial photographs of accused 1’s
residence,
photographs of the red
Jetta
,
of the scene of the
shooting incident in Lenasia, an extract from a docket containing
cell phone numbers and names downloaded from
the memory of his cell
phone after his arrest, his cell phone record for the period 1 June
to 18 September 2003 under his then cell
phone number, extracts from
the documents purporting to be cell phone records relating to Jimmy
Maseko’s phone which he had used
during the first robbery and
copies of three receipts issued to
Vernie’s
Transport
by
Bera’s
Transport
.
[54] That, in broad outline was the
evidence in chief given by Aspeling over a period of four days. He
was then cross-examined by
six different counsel for a further eight
days. Various themes were repeatedly expressed in the
cross-examination. These included
that Aspeling was a self-confessed
liar and criminal; his expressions of remorse for his participation
in the robberies were decried
as false and he was accused of
testifying for the State merely to save his own skin. He was also
accused of having a criminal past.
It was acknowledged by his
cross-examiners that he participated in each of the robberies but, it
was said, he was falsely implicating
each one of the accused.
[55] Instead, it was put to him, he in
fact had been the ringleader in each of the robberies with his own
gang of robbers and what
he was attempting to do through his
testimony was to protect those of his colleagues who were implicated
by falsely substituting
the accused for them. Limited admissions of
certain aspects of Aspeling’s evidence were made on behalf of
certain of the accused,
notably accused 1 and 2 relating to the
scouting expedition to Port Elizabeth, and the aftermath to the
Kinkelbos robbery including
the shooting incident in Lenasia. Where
these admissions were made, however, they were glossed with an
innocent explanation. I shall
deal with these aspects more fully when
I deal with evidence corroborating that of Aspeling and when I
analyse each of the accuseds’
cases individually.
[56] Aspeling was subjected to lengthy
cross-examination regarding the alleged discrepancies between his
evidence and three statements
drawn up on his behalf reduced to
affidavit form by his attorney. He was probed, time and again, on the
detail of his testimony regarding
the three robberies and vigorously
challenged on what were put to him were improbabilities, even gross
improbabilities, in his evidence.
Chief amongst these were his
account of how he came to be drawn into the first robbery in Cape
Town through his dealings with Zallie.
It was put to him that the
entire account of how he was prepared to come down to Cape Town,
notwithstanding the lies which Zallie
had told him concerning the
initial reason for the trip, was entirely improbable. So too, it was
put to him, was his account of spending
days in Cape Town before the
realisation dawned that his accomplices were about to embark on a
major criminal enterprise.
[57] Another area which attracted the
attention of Aspeling’s cross-examiners was his account of how the
shootout in Lenasia South
had ended with him jumping into accused 1’s
vehicle with Grant and driving off, in the process throwing away
accused 1’s firearm.
This, it was put to him, and argued, was
wholly improbable. Another area focussed upon was what was said to be
the improbability
of Aspeling being hijacked after the Kinkelbos
robbery by accused 1 and 2 and, throughout the trip to Alberton,
Comaro and Frankfort,
his making no attempt to escape his captors.
[58] In regard to the criticism of
Aspeling’s evidence based on alleged omissions in and discrepancies
between his affidavits and
his evidence in court, it should first be
noted that defence counsel chose to prove only one of Aspeling’s
three affidavits. It
is not possible therefore for the Court to
properly evaluate such alleged discrepancies or omissions within the
context of the entire
picture. Secondly, Aspeling’s own explanation
for some omissions, namely, that he and his attorney envisaged that
he would flesh
out the affidavits in
viva
voce
evidence, has both
common sense and judicial approval in its favour. The courts have
repeatedly emphasized that discrediting a witness
on the basis of
minor discrepancies in his/her prior statement/s is unjustified given
that the purpose of an affidavit is to obtain
the details of an
offence, so that it can be decided whether a prosecution should be
instituted against the accused or, in this case,
to determine whether
Aspeling would be be an appropriate s 204 witness. It was not the
purpose of such affidavits to anticipate the
witness’s evidence in
court to the last detail and it is absurd to expect of a witness to
furnish precisely the same account in
his statement as he would in
his evidence in open court. See
S
v Bruiners and Another
1998
(2) SACR 432
(SE).
[59] It is, significant, however, that
important aspects of Aspeling’s evidence were confirmed or
corroborated either by independent
evidence, in several instances
documentary evidence, and also by admissions or evidence emanating
from the accused themselves. Firstly,
it was apparent to all that
Aspeling’s account of the three robberies of the BATSA trucks was
that of a firsthand participant.
The detail which Aspeling gave about
the robberies left no doubt that he was involved and, furthermore his
account of the robberies
was confirmed by a series of independent
witnesses including the BATSA drivers and their assistants involved
in each robbery. As
I have mentioned, Aspeling’s account of the
scouting trip to Port Elizabeth involving accused 1 and 2 was
confirmed in broad outline
by accused 2 when he testified. He stated,
however, that the trip had nothing to do with a planned robbery of a
BATSA truck but had
ensued because Aspeling had approached accused 1
and 2 and told him that he was bringing goods from Port Elizabeth but
was scared
of accused 3 and required their protection. For this
reason accused 1 and 2 had travelled down to Port Elizabeth with him
so that
he could show them the road which he would take back from
Port Elizabeth when he fetched the goods. Likewise, accused 2
admitted
that he and accused 1 had escorted Aspeling from the Eastern
Cape back to Alberton and Johannesburg shortly after the initial
scouting
trip.
[60] During this trip accused 2 had
indeed stayed at the
Formula
One
hotel with Aspeling.
However, at no stage had accused 1 and 2 been aware of what goods
Aspeling was transporting back from the Eastern
Cape in his truck.
Accused 2 also admitted that he and accused 1 had been involved in a
shooting incident at the same spot in Lenasia
South described by
Aspeling and that many of the participants whom Aspeling had
described had indeed been involved. During that shootout
accused 2
had indeed been shot in his leg and hospitalized in
Lenmed
Clinic
, however, it had not
been for the reasons contended for by Aspeling. When accused 2 was
arrested by the police he was still bandaged
and he could only walk
with the aid of crutches.
[61] It was impossible for accused 1
or 2 to deny that the shootout took place because the State led the
evidence of Sergeant J Dlamini
of the Lenasia South police station
who drove the police truck which happened upon the scene of the
shootout on 3 October 2003. He
confirmed that it involved
approximately ten men in a white
Golf
,
a red
Jetta
and a white
BMW
.
He confirmed too that after following the red
Jetta
he eventually came upon it standing outside an address in Ennerdale
with accused 1 in the front passenger seat. Later at
Lenmed
clinic he found accused 2 lying on a stretcher in pain from a bullet
wound. When accused 2 and several of the other accused later
testified they all admitted the shooting incident but portrayed
Aspeling, accompanied by unnamed black men, as the aggressor.
[62] Aspeling testified hearing that
accused 4 had travelled to and from Port Elizabeth by bus rather than
risk travelling in the
Caravelle carrying equipment to be used in the
robbery. The State led the evidence of various employees of
InterCape
mainliner which proved that
the passenger list for a coach from Cape Town to Port Elizabeth on 1
October 2003 (exhibit “W”) contained
the name “V Victor” and
a cell phone number,
072 105
7155
which was later linked
to accused 4. Similarly, the passenger manifest for a coach returning
to Cape Town the following day, 2 October
2003, contained the same
name and telephone number (exhibit “X”). An extract from the
accommodation register for
Bantry
Executive Suites
for the
night 1/2 October 2003 showing the main occupant as “Hokai J”,
was similarly proved. Mr. Bradley Dantu, the driver of
the BATSA
truck robbed at Kinkelbos, identified accused 7 in an identification
parade as one of the persons involved in the robbery.
He also made a
dock identification of accused 4 as the white man who had been
dressed as a policeman at the scene of the robbery.
When accused 2
was arrested an outside room on his property was searched and South
African Police Services insignia and several sets
of police uniform
in the form of dark blue pants and light blue shirts were found.
Accused 2 never tendered an explanation for this
material beyond
testifying that he had no knowledge thereof and implying that it had
been planted there by the police.
[63] The State tendered in evidence
copies of four invoices allegedly issued by
Bera’s
Transport
in respect of the
hire of the truck used by Aspeling during 2003. The preface to the
handing in, however, was that the State intended
calling someone from
Bera’s Transport
to verify the documents. This in fact was never done. In the
circumstances it appears that all evidence and cross-examination
relating
to all but one of the invoices is inadmissible. Under
cross-examination, Aspeling explained that the invoice apparently
issued on
6 August 2003, exhibit “UUU (3)” was in fact written
out by him using
Bera’s
Transport’s
invoice book.
This evidence was not challenged and, since Aspeling no longer had
the original of the receipt issued, provided corroboration
that he
had indeed hired a truck from
Bera’s
Transport
in August 2003
involving a deposit of R2000,00 and later paying the balance owing of
R6 000,00, just as he had testified.
[64] Aspeling testified that shortly
before the second robbery he had breakfast with accused 1 and others
at the Waterfront on which
occasion the latter’s red
Jetta
had been clamped for parking in a disabled bay. The State called Mr.
Klaas Van Rooyen, a security officer at the Victoria and Albert
Waterfront who confirmed that he clamped such a vehicle on that day.
Through him an original control sheet was handed up confirming
the
incident and identifying the
Jetta
and the driver as accused 1
who had furnished a cell phone number
072
460 4655
. Van Rooyen’s
evidence was not challenged in cross-examination. Accused 1 never
testified. Accused 2 denied that he was in Cape
Town at the time
although he did admit that it was his car which was clamped and that
accused 1 had been in Cape Town at the time.
As stated earlier,
accused 1’s counsel admitted on his behalf in cross-examination
that he was in Cape Town at the time. There
is thus independent
corroboration that accused 1 was in Cape Town shortly before the
Darling robbery, as was his red
Jetta
.
[65] Aspeling testified that on the
Saturday preceding the Darling robbery accused 6 and 7 applied for an
“MVG card” at the
Grand
West Casino
. Mr. Alfred
Hall, who was employed as a surveillance investigator by the casino,
testified that on that date a Mr. Llewellyn Smith
applied for and was
issued with an “MVG card”. His identity number was recorded as
770404 5246 089
and his cell phone number as
072
270 1704
. Hall testified
that this person would have had to apply for the card in person and
show his identity document. Apart from the discrepancy
of one day
between the dates, this witness’s evidence corroborates that of
Aspeling. In evidence accused 7 simply denied being
either in Cape
Town or at the casino at that time. A warning statement made by
accused 7 was proved in evidence in which the accused
furnished the
same identity number as that recorded by the
Grand
West Casino
(exhibit “S x
6”). (The proliferation of exhibits in this matter led to the
alphabet being used up to seven times to identify
all the exhibits.
For ease of reading, exhibit “OOO”, for example, will be
shortened to exhibit “O x 3”.)
[66] Aspeling testified that one of
the participants in both the Rawsonville and Darling robberies was
one, Zackie Isaacs, a member
the Cape Town group. On the night of his
arrest on 9 October 2003 accused 1’s red
Jetta
was searched by Superintendent Du Plessis, the officer in overall
charge of the search and seizure operations. In the vehicle’s
cubby-hole he found a number of duplicate deposit slips. One of them,
exhibit 25(4) reflected the depositor as being a Llewellyn
Smith
(accused 7) and the date as 15 August 2003. There a telephone number
attributed to the said Llewellyn Smith is the same as
that furnished
to the
Grand West Casino
by the Llewellyn Smith who applied for an “MVG card” from
Grand
West Casino
, namely,
072
270 1704
. Furthermore the
deposit slip records a deposit of R47 000,00 in cash to a
First
National Bank
account in
Grassy Park, Cape Town to the credit of one Isgak Isaacs who the
prosecution argued could have been none other than the
selfsame
“Zakkie” Isaacs. Although it must be said that the duplicate
deposit slip is unclear, if scrutinized carefully these
details are
legible. Accused 7 denied any knowledge of the deposit slip or making
the deposit in question but it offers some independent
corroboration
of Aspeling’s evidence that at least one member of the Cape Town
contingent in the Darling robbery received payment
from a member of
the Johannesburg group of a large sum of money shortly after the
robbery.
[67] On 14 October 2003 Inspector
Herselman conducted a search of a dilapidated house on a property
adjoining that of accused 1. The
occupant of the house, a Mr. Vincent
Matthysen, as well as accused 1’s wife both confirmed that the
property belonged to accused
1. In the ceiling of the house an orange
and yellow reflective jacket with the word “Police” prominently
displayed as well as
a South African Police Services inspector rank
insignia was found as well as a bullet proof jacket with the word
“Police” again
prominently displayed in front and behind and
carrying a police serial number. Also found was the outside cover of
a bullet proof
jacket but with no serial number. The reflective
jacket was also identified by the witness as police issue and as
having an official
number. Matthysen was not arrested because he
appeared to have a mental disability. Since accused 1 did not testify
no explanation
was proffered by him for the presence of this
equipment on what appeared to be his property.
[68] A major potential source of
corroboration for Aspeling’s evidence lies in the voluminous
records relating to the cell phone
activity of cell phones allegedly
used by the accused or other participants in the robberies. The
admissibility of that evidence
is disputed, however, and therefore I
propose to deal with it separately. What can be said at this point
however, is that Aspeling’s
own cell phone data, and that of Jimmy
Maseko, who was not an accused, bears out Aspeling’s evidence of
being present on at least
two of the crime scenes and being in
telephonic contact with various accused at the time.
[69] Aspeling’s evidence was
extensively criticized by various counsel appearing for the accused.
They argued that he repeatedly
contradicted his own written
statements and that he had clearly been “schooled” in his
evidence. It was said that a distinctive
feature of his evidence were
the lies which Aspeling had told in the course of the three robberies
including lies to his girlfriend,
to the Bera’s, the staff of the
hotel in Port Elizabeth and to the South African Police immediately
after his arrest. This criticism
has, in my view, limited weight. All
of these lies were readily admitted by Aspeling and were functional
in the sense that they were
necessary in order to keep his
involvement and that of his fellow accomplices in the robberies known
to as few people as possible.
The only exception to this was when
Aspeling initially lied to his accomplices in the Kinkelbos robbery
as to how he had been robbed
of the stolen cargo.
[70] Aspeling’s evidence was also
criticized on the basis that he sought constantly to diminish his
role in the robberies. However,
Aspeling freely testified that he was
a full and knowing participant throughout the second and third
robberies and, furthermore,
that by the time that the first robbery
was executed he knew in what he was involved. There may be stronger
grounds to contend that
Aspeling was not completely frank regarding
at what stage he became aware that the purpose of the trip to Cape
Town was to commit
a major robbery. His account of how he only slowly
prised this information out of Zallie is not entirely in keeping with
what appeared
to be Aspeling’s nature i.e. an assertive person who
was unlikely to sit around in Cape Town for two or three days not
knowing
exactly what he was involved in. On the other hand his
account of initially being gulled into the trip by Zallie on the
basis that
it was to fetch spare car parts from Klerksdorp is also
credible. It is quite possible that for their own reasons the accused
and
Zallie kept vital information from Aspeling regarding the true
purpose of the trip to Cape Town until late in the day.
[71] As far as another major area of
improbability is concerned, at least according to defence counsels’
arguments, I find nothing
improbable in Aspeling’s account of
either the shooting or the aftermath thereto. In the first place the
fact of the shooting is
both established and admitted. Quite clearly,
once the police vehicle was spotted the feuding factions comprising
the accused and
others were faced with a common and greater enemy. In
the face thereof they immediately buried their differences for the
time being
and either fled the scene or furnished false explanations
as to what had just taken place. To have done otherwise would have
been
to risk all being arrested and the three robberies being
exposed. That they resolved their differences ultimately is borne out
by
Aspeling’s evidence that a compromise was reached and the
proceeds of the entire robbery was shared between the original
hijackers
and, as accused 2 is said to have put it, “the hijackers
of the hijackers”.
[72] As the summary of his evidence
indicates, Aspeling testified over an extended range of subject
matter namely, four robberies,
the preparations for three of them and
the aftermath of each robbery. This covered a period between June and
October 2003 and involved,
in the case of each robbery, up to ten
persons. Aspeling testified in extraordinary detail regarding his
role and that of the other
persons whom he implicated in the
robberies. He did so with great assurance and without being prompted
by the State, so much so that
during cross-examination Mr. Thompson,
on behalf of accused 3 and 4 put it to Aspeling that his evidence in
chief was delivered in
a “faultless manner” and that his
“demeanour was unshakable”. Aspeling was subjected to eight days
of cross-examination by
six counsel during which he was repeatedly
questioned concerning the roles of various persons in the robbery.
Notwithstanding this,
counsel were unable to trip up Aspeling on more
than a few details. In fact in his evidence Aspeling from time to
time corrected
counsel’s mistakes regarding the evidence he had
already given. One aspect where he can be criticized in this regard
was his evidence
relating to the presence of accused 8 on the morning
before the first robbery something which will be dealt with in
greater detail
in due course.
[73] This Court had an extended
opportunity to observe the witness. He was, as was put to him on
several occasions by counsel, clearly
a man of considerable
intelligence. He was, furthermore, articulate with a confident and
assertive personality. He appeared to bear
no particular malice or
resentment against the accused despite oblique references to
incidents which he regarded as threatening to
his or his wife’s
safety and that of his son by his first marriage. This lack of malice
was borne out by the fact that he had no
hesitation in testifying
that certain of the accused were not involved in certain of the
robberies. So for example Aspeling testified
that accused 6, 7 and 10
were not involved in the first robbery and that, in relation to the
third robbery, accused 10 did no more
than pick up accused 1 at the
Kroonvaal toll plaza.
[74] For the most part Aspeling
appeared to enjoy the battle of wits involved in his
cross-examination. This was manifest in his tendency
to sometimes
become somewhat argumentative under cross examination, to ask the
cross-examiner questions and to argue his own position
or to seek to
demolish the position being advanced by counsel on behalf of one or
other of the accused. Notwithstanding these criticisms
Aspeling’s
evidence as a whole and in cross-examination was most impressive.
Counsel for accused 11, Mr. Spangenberg, placed great
reliance on
what he argued was Aspeling’s failure to answer a critical question
in cross-examination. This incident must be seen
in context, however.
In the first place it occurred towards the end of Aspeling’s
marathon stint in the witness box and towards
the end of his lengthy
cross-examination. The cross-examination in question was at times
aggressive if not ill-tempered with neither
the cross-examiner nor
Aspeling prepared to give an inch. Aspeling referred to it as a “tug
of war”. Its tone was evidenced by
State counsel’s objections to
aspects of the cross-examination as being “bullying” and
“sarcastic”.
[75] Towards the end of his eleventh
day in the witness box Aspeling declined to answer further questions
concerning the issue of
Zallie misleading him as to the true purpose
of the trip to Cape Town. He did so on the basis that the answer
would become “too
lengthy”. He continued to answer all other
questions until Court adjourned for the day shortly thereafter. The
following morning
at the re-commencement of his cross-examination,
Aspeling immediately declared himself willing to answer any further
questions on
the topic. He explained that he and the cross-examiner
had “started on a rocky road” the previous day. Asked by the
cross-examiner
why he had refused to answer the previous day he
explained, “but to me, it seemed as if we were at a type of war or
something”.
In my view the explanation furnished by the witness for
his refusal to answer was entirely credible. Further, his
preparedness to
answer the question the following day after more
mature reflection of his position largely negated any criticism that
this incident
adversely affected his credibility or indicated an
inability to answer the question.
[76] Notwithstanding the extremely
favourable impression which Aspeling made as a witness, his evidence
was not without fault. I have
already alluded to the improbability of
aspects of his evidence relating to how he was drawn into the first
robbery. A similar criticism
can perhaps be levelled at his evidence
regarding his initial false explanation to his accomplices as to what
had happened to him
whilst driving away from the scene of the
Kinkelbos robbery with the cargo of cigarettes. Aspeling’s
explanation of his behaviour
in this regard is that he did not want
to disclose accused 1 and 2’s role in the post-Kinkelbos hijacking
because he wished to
avoid the spectre of his accomplices charging
off to Johannesburg to engage in a violent confrontation with accused
1 and 2. This
explanation cannot be rejected out of hand since, given
his intelligence and the fact that he’d already made the suggestion
to
accused 1 and 2, it seems clear that Aspeling had already then
seen the possibilities of negotiating with accused 1 and 2 for a
share
of the proceeds of the robbery.
[77] Aspeling impressed as someone who
had decided to make a clean breast of things and was quite prepared
to admit to the criminal
actions in which he had been involved. He
revealed himself as someone who kept cool in a situation of crisis or
pressure and as someone
who would invariably talk his way out of a
tight corner rather than resort to violence or threats of violence.
As far as accomplice
witnesses are concerned, I have never previously
encountered a witness who testified over so wide a terrain and in
such great detail
but with so little damage being done to his
evidence. The above observations were made and impressions formed, on
a
prima facie
basis, after hearing Aspeling testify in February 2006. Given the
elapse of more than two years before argument was eventually heard
I
re-read his transcribed evidence in full after hearing argument which
transcription was available to counsel throughout. If anything,
this
re-reading strengthened my first impressions of his evidence arrived
at more than two years before.
[78] In summary then, Aspeling’s
evidence, although not flawless, contained no material contradictions
or inconsistencies. What
improbabilities there may be in his evidence
are not of such a degree as to render his veracity suspect and
certainly he has not
been shown to be a deliberately untruthful
witness. Notwithstanding the highly favourable impression which we
have of Aspeling’s
evidence, the fact remains that he is both an
accomplice witness and a single witness in respect of many material
aspects of the
State’s case against the accused. In terms of
s 208
of the
Criminal Procedure Act, 51 of 1977
an accused may be convicted
of any offence on the single evidence of any competent witness.
[79] It is trite law, however, that,
as a result of the danger of relying exclusively on the sincerity and
perceptive powers of a
single witness, a judicial practice has
evolved that such evidence be treated with special care. The
cautionary rule originated in
remarks made by De Villiers, JP in
R
v Mokoena
1932 OPD 79
to
the effect that the evidence of a single witness should only be
relied upon where it is “
clear
and satisfactory in every material respect
”.
However, over the years a more flexible approach to the testimony of
a single witness has been generally accepted. This follows
the
decisions in cases such as
R
v Nhlapo
1953 (1) PH H 11
(A),
R v Bellingham
1955 (2) SA 566
(A) ,
R v
Abdoorham
1954 (3) SA 163
(N),
R v Mokoena
1956 (3) SA 81
(A) and
S v
Webber
1971 (3) SA 754
(A).
In the last mentioned case Rumpff, JA remarked, at 758G – H:
“
Dit
is natuurlik onmoontlik om ‘n formule te skep waarvolgens elke
enkele getuie se geloofwaardigheid vasgestel kan word, maar dit
is
noodsaaklik om met versigtigheid die getuienis van ‘n enkele getuie
te benader en om die goeie eienskappe van so ‘n getuie
te oordeel
tesame met al die faktore wat aan die geloofwaardigheid van die
getuie kan afdoen”.
[80] In
Nhlapo’s
case Schreiner JA stated that:
“……
..
the cautionary rule (enunciated in
R
v Mokoena
supra) may well be helpful as a guide to the right decision, it
naturally requires judicious application and cannot be expected to
provide, as it were automatically, the correct answer to the question
of whether the evidence of the crown witness should be accepted
as
truthful and accurate”.
The learned judge added that it does
not mean that an appeal must succeed
“if
any criticism, however slender, of a witnesses evidence were well
founded”
.
[81] In
R
v J
1966 (1) SA 88
(SRA)
Mac Donald AJP expressed the view that the cautionary rules are “no
more than guides, albeit very valuable guides, “which
assist the
Court in deciding whether the Crown has discharged the
onus
resting upon it”. He added (at 90 E – F):
“
The
exercise of caution should not be allowed to displace the exercise of
common sense. And once a judicial officer has anxiously
scrutinised
the evidence of a single witness he should not be ‘swayed’ by
fanciful and unrealistic fears.”
In
S
v Sauls
Dichmont JA stated
as follows (at 180E – F):
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of a single witness… The
trial
Judge will weigh his evidence, or consider its merits and de-merits
and, having done so, will decide whether it is trustworthy
and
whether, despite the fact that there are shortcomings or defects or
contradictions in the testimony, he is satisfied that the
truth has
been told. “
[82] I am acutely aware, furthermore,
that in respect of key elements of the State’s case, Aspeling is
not only a single witness
but is, moreover, an accomplice witness.
The evidence of such a person is treated as suspect for a number of
reasons. Where such
a person is seeking indemnity from prosecution,
as is the case with Aspeling, his evidence may be motivated by a
desire to implicate
the accused irrespective of the truth simply in
order to improve his chances of obtaining indemnity. Secondly,
because of the accomplice’s
particular knowledge of the crime or
crimes concerned, he can easily phrase untruthful evidence in such a
manner that it acquires
a semblance of truth. This danger was
expressed as follows by Schreiner JA in
R
v Ncanana
1948 (4) SA 399
(A) at 405:
“…
for an
accomplice is not merely a witness with a possible motive to tell
lies about an innocent accused. Such a witness is peculiarly
equipped, by reason of his inside knowledge of the crime, to convince
the unwary that his lies are the truth.”
[83] For these reasons our Courts have
adopted a cautionary rule which was classically expressed, together
with the reasons for such
a rule, in
S
v Hlapezula
1965 (4) SA
439
(A) where Holmes JA stated (at 440 D – H) as follows:
“
It
is well settled that the testimony of an accomplice requires
particular scrutiny because of the cumulative effect of the following
factors. First he is a self-confessed criminal. Second, various
considerations may lead him falsely to implicate the accused, for
example the desire to shield a culprit or, particularly where he has
not been sentenced, the hope of clemency. Third, by reason of
his
inside knowledge he has a deceptive facility for convincing
description – his only fiction being the substitution of the
accused
for the culprit. Accordingly… there has grown up a
cautionary rule of practice requiring –
(a) recognition by
the trial court of the foregoing dangers,
and
(b) the safeguard
of some factor reducing the risk of a wrong conviction, such as
corroboration implicating the accused in the commission
of the
offence, or the absence of gainsaying evidence from him, or his
mendacity as a witness, or the implication by the accomplice
of
someone near or dear to him; see in particular R v Ncanana
1948 (4)
SA 399
(A) at 405 to 406; R v Gumede
1949 (3) SA 749
(A) at 758; R v
Nqantweni and Another
1959 (1) SA 894
(A) at 897 G – 898 D.”
[84] Satisfaction of the cautionary
rule does not necessarily warrant a conviction, for the ultimate
requirement is proof beyond reasonable
doubt, and this depends upon
an appraisal of all the evidence and the degree of the safeguard
aforementioned. Thus although
s 208
of the
Criminal Procedure Act
provides
that an accused may be convicted of any offence on the
single evidence of a witness, even an accomplice witness, it does not
follow
that the cautionary rule has ceased to apply. Before a Court
will rely on the evidence of an accomplice therefore it will
generally
seek to find some circumstances which will reduce the
danger that it might convict the wrong person. Amongst such
safeguards are
corroboration, the fact that the accused has chosen
not to deny the accomplices evidence on oath, or where the accused
has proved
to be a lying witness.
[85] As was pointed in
S
v Snyman
, however, the
recognition by the court of the inherent dangers of accepting an
accomplice’s evidence and even despite the existence
of some
safeguard reducing the risk of wrong conviction such as
corroboration, the failure to testify or mendaciousness
“will
not per se warrant a conviction, for the ultimate requirement is
proof beyond reasonable doubt: and this depends upon an appraisal
of
the totality of the evidence and the degree of the safeguard
aforesaid”
. Homes, JA
went on to quote with approval Mac Donald AJP’s dictum to the
effect that the exercise of caution should not be allowed
to displace
the exercise of common sense when assessing the evidence of witnesses
whose evidence must be approached with caution.
In
S
v Francis
1991 (1) SACR 198
(A) Smalberger JA, considering the evidence of an accomplice stated
as follows:
“
It
is not necessarily expected of an accomplice, before his evidence can
be accepted, that he should be wholly consistent and wholly
reliable,
or even wholly truthful in all that he says. The ultimate test is
whether, after due consideration of the accomplice’s
evidence and
the caution which the law enjoins, the Court is satisfied beyond all
reasonable doubt that in its essential features
the story that he
tells is a true one. (R v Kristusamy 1945 (AD) 549 at 556.)”
[86] Applying this collected wisdom to
the circumstances of the present case, and not withstanding the most
impressive quality of
the evidence of Aspeling, the single and
accomplice witness, I have come to the conclusion that it will be not
be safe to rely, for
a conviction, on the evidence of Aspeling alone.
Instead, this Court will seek guarantees for the reliability of
Aspeling’s evidence
against each and every accused, be that in the
form of corroboration in some material respect, the failure of an
accused to testify
(obviously where there was a proper case for the
accused to meet) or the mendaciousness of an accused in his evidence
or in the evidence
of his witnesses. In doing so the Court will have
regard to all the factors which may be material in this regard, the
above factors
not being a closed list. The Court will bear in mind
that the ultimate test is proof of guilt beyond reasonable doubt and
that the
case of each accused must be decided on its own particular
circumstances.
[87] As previously noted the State
relied heavily on documentation recording cell phone activity as
providing corroboration for the
involvement of many of the accused in
the robberies. That evidence was contested at every turn by defence
counsel and it is necessary,
therefore, to consider its general ambit
and its admissibility.
[88] What I will refer to generally as
the cell phone documentation, which was largely the evidence
purporting to record, in written
form, the cell phone activity
relating to various cell phone numbers, was obtained by the State
from various cell phone service providers
through the issue of
various subpoenas in terms of
s 205
of the
Criminal Procedure Act, 51
of 1977
. The accused disputed the admissibility of all such cell
phone evidence hence the first trial-within-a-trial which was held.
The
ambit thereof was furthermore extended to the admissibility of
articles seized by the South African Police Services following the
searches of the premises of various accused on or about 9 October
2003. The Court ultimately made the following order at the conclusion
of that trial-within-a-trial:
“
1.
The evidence derived from the
s 205
subpoenas, exhibits RR2 and RR3,
relating to the following accused’s cell phone numbers and exhibits
(where applicable) namely:
Accused 1:
072
460 6755
exhibit
“TT”
Accused
2:
072
221 2408
exhibit
“…..”
Accused
3:
072
565 6571
exhibit
“SS”
Accused
6:
072
373 1856
exhibit
“UU”
is held to be
inadmissible.
The evidence of
and related to the articles seized following the search of accused
1, 2, 3, 6 and 7 on the premises occupied by
them on or about 9
October 2003 is held to be admissible.”
[89] No reasons were given for that
order at the time but they are handed down together with this
judgment. The following articles
were seized from the following
accused:
Accused 1:
two
cell phones as well as documentation removed from the cubby-hole of
accused 1’s red
Jetta
;
Accused
2:
two cell phones and a
black plastic bag containing various items of police uniform and
insignia;
Accused 3:
a
cell phone and a white
Volkswagen
Golf
;
Accused
6:
a cell phone; and
Accused 7:
a
white
Volkswagen Polo
,
a white
BMW
vehicle, two cell phones and documentation relating to the vehicles.
[90] A further trial-within-a-trial
was held concerning records relating to the usage of certain cell
phone records before, during
and after the third robbery near
Kinkelbos in October 2003. Those records were similarly obtained from
the service providers through
s 205
subpoenas authorised by the Port
Elizabeth magistrate. Once again that documentation was held
inadmissible when the evidence brought
to light that the magistrate
had failed even to appreciate the test which he was required to apply
in considering the applications
for a subpoena. That order was made
on 11 April 2006 and held that the evidence derived from exhibit “B
x 4” and “C x 4”
namely,
s 205
subpoenas issued by the
magistrate, Port Elizabeth, was inadmissible.
[91] The third trial-within-a-trial
was then held in relation to the admissibility of much the same cell
phone records but procured
from cell phone service providers by way
of further subpoenas issued in terms of
s 205
of Act 51 of 1977. In
that matter judgment was delivered on 20 April 2006 with full written
reasons which culminated in the following
order:
“
The
evidence obtained by the State pursuant to the subpoenas authorised
in respect of Vodacom on 24 February 2006 and MTN on 9 March
2006
(pages 1 – 4 of annexure “EEEE”) is admissible.”
The said annexure comprised two s 205
subpoenas. The first was addressed to Ms Petro Heynecke or a
representative of
Vodacom
to
place the following information before the prosecutor or
investigating officer:
“
1.
Detailed billing records pertaining to the under-mentioned cellular
telephones, including calls made and received, location of
the user
and handset queries for the period 2003/06/01 at 00.00 till
2003/09/02 at 24.00:
1.1:
072
200 9633
1.3:
072
460 6755
1.4:
072
565 6571
1.5:
082
776 2314
1.6:
072
231 2408
1.7:
072
373 1856
1.8:
072
105 7155
.”
The second subpoena was addressed to
Ms Hilda du Plessis or a representative of
MTN
and required her to produce the following:
“
1.
Detailed billing records pertaining to the under-mentioned cellular
telephones, including calls made and received, location of
the user
and handset queries for the period 2003/06/01 at 00.00 till
2003/09/18 at 24.00:
1.1:
083
971 4426;
1.2:
083
364 3235;
1.3:
073
269 9117
.”
[92] Paragraph 3 of the subpoena read
as follows:
“
It is requested
that it be established as to which sim card numbers (cell phone
numbers) was used in under-mentioned cell phones (handsets/IMEI)
for
the period 2003/06/01 until 2003/11/01:
“
3.1:
350148-20-807320-8
3.2:
449342-20-267307-13
3.3:
350606-20-930114-2
.”
In due course Ms Hilda du Plessis
testified she was employed by
MTN
as a forensic data analyst and had access to
MTN’s
database. She was then the
only person who dealt with forensic requests for access to
MTN’
’s
database. The witness testified that from time to time
MTN
received requests from
the South African Police Services for cell phone data in terms s 205
of Act 51 of 1977. In its basic form
the data is in electronic format
and cannot be manipulated or falsified. It can only be manipulated
when copied to
Excel
spread sheets but certainly no such manipulation takes place within
MTN
.
Data which is older than two or three years is kept in a back-up
system in the company’s archives.
[93] The witness was aware of the
subpoena issued in 2006 by the Cape Town magistrate, namely, the
subpoena contained in exhibit “EEEE”.
The data which was sought
was not immediately available because it had been archived.
MTN
personnel worked after hours and over weekends to make the data
available and convert it into a readable format. She was not able
to
retrieve data in respect of the number
083
364 3235
. The witness’s
attention was directed to exhibits “QQQQQ(1)” – “QQQQQ(5)”
and identified the documentation as emanating
from
MTN
’s
computerized database. She identified exhibit “QQQQQ(2)” as cell
phone data relating to the number
073
267 9117
for the period 1
June 2003 till 18 September 2003. The State seeks to link this cell
phone number to Jimmy Maseko whose phone Aspeling
testified he used
during the first robbery. Du Plessis identified exhibit “QQQQQ(4)”
as being data pertaining to the number
083
971 4426
. This number was
allocated to “Telematrix”, a satellite tracking company. The
State sought to link this phone to accused 3. The
witness then
identified exhibit “QQQQQ(5)” as relating to telephone number
083
364 3235
. The State sought
to link this number to accused 8.
[94] In cross-examination it was put
to the witness that the data was not reliable, a proposition with
which she disagreed. The authenticity
of the documentation was not
challenged in cross-examination. Another employee of
MTN
,
a Mr. Cornelius Basson, testified that he was responsible for the
operation of the systems which generate, select, mediate and supply
call data records (CDR’s) to the
MTN
billing system. He stated that the operating systems are pre-tested
to the highest possible level of security and error-free operation
and are protected against hardware failure. He added that the systems
involved in generating, transporting, collecting and processing
CDR’s
are properly maintained, monitored on a continuous basis and deliver
a very high level of reliability and security. There
were no reasons
to infer that any information or records provided by these systems
were in any way inaccurate or had been tampered
with.
[95] Pursuant to the other subpoena
issued, contained in exhibit “EEEE”, Ms Petro Heyneke, an
employee of
Vodacom
,
was called to testify. She is the forensic liaison manager at
Vodacom’s
head office and is responsible for releasing call-related information
by means of a directive from
Vodacom
.
She had received internal training in the usage of cell phones and
the working of the
Vodacom
systems from engineers, technicians and various other responsible
persons. The systems in question are the billing and administration
systems whereby cell phone data and ownership is determined. The
Vodacom
systems hold the history of a sim card of a handset since 1998 and
only a specified user group is allowed to use the system. The
data
contains all cell phone activities such as incoming and outgoing
calls, sms’s and voice messages left by other parties. It
contains
both successful and unsuccessful calls, the only thing not being
registered being a missed call.
[96] The witness’s attention was
directed to exhibit “VVV”, being a guide to explain what is meant
by the various columns in
Vodacom
’s
standard form cell phone data. The first column contains the cell
phone number, being the number allocated to a sim card by
Vodacom
.
The second column contains the IMSI number which is encrypted into a
sim card and read by the system. It is a unique number identifying
a
cell phone number and is not visible on the sim card. A third column
contains the IMEI number which identifies the handset being
used. The
fourth column contains the call date and the fifth column the call
type. “MOC” stands for mobile originating call and
indicates that
it is an outgoing call. “MTC” indicates that it is a received
call. The sixth column reflects call duration which
is measured in
seconds, “0” indicating that it is an sms. The seventh column is
the number dialled or a call received. Only outgoing
sms’s appear
because this is what the customer pays for. The cell phone number of
incoming sms’s does not appear. The ninth column
is the cell ID.
This reflects base stations which are cell phone towers along roads
which transmit the cell phone signal. Each base
station has a unique
number. The tenth column contains the base station which transmits
the strongest signal in relation to calls
made or received in a
moving vehicle. The originating base station will be indicated in the
data but the system will not pick up
another base station if passing
through the radius of another base station.
[97] The witness’s main
responsibilities related to the data. It is released in the encrypted
portable version format (PDF) to show
that the data has not been
tampered with. The exhibits before Court are in the
Excel
spreadsheet format since the information was requested in e-mail
format and printed in e-mail format. The police requested the data
to
be e-mailed because of the volume thereof and because the encrypted
version cannot be e-mailed. Only once the data is moved from
PDF to
Excel
,
can it be tampered with. The data is processed in massed volumes.
Since
Vodacom
receives many subpoenas they do not know the detail of the various
cases.
Vodacom
cannot change one set of data without changing another set of data
emanating from Vodacom.
[98] The witness then had her
attention directed to various bundles of documentation. She
identified exhibit “QQQQ(3)” as
Vodacom’s
data relating to the number
072
105 7155
, listed as 1.8 in
the relevant subpoena. The State sought to link this number to
accused 4. She identified a further portion of the
exhibit as
relating to the number
082
776 2314
, item 1.5 in the
subpoena. She testified, using exhibit “OOOO”, that
Vodacom’s
ownership profile of the number reflected it as having been allocated
to one Yolanda Zeelie in a contract whose term was from 1 March
2003
until August 2003 when it was deactivated. The State sought also to
link this number to accused 4.
[99] Ms Heyneke identified exhibit
“QQQQ 1” as being
Vodacom
cell phone data relating to telephone number
072
200 9633
, item 1.1 in the
subpoena and, according to the evidence of Aspeling, his cell phone
number in or about June 2003. The witness then
identified the next
portion of the exhibit as the
Vodacom
data pertaining to a
prepaid number
072 105 7155
,
item 1.8 in the subpoena,
another number which the State sought to link to accused 4. The
witness identified a further portion of
the bundle of
Vodacom
documentation pertaining to cell phone number
072
565 6571
, a cell phone
number the State sought to link to accused 3.
[100] The next portion of the exhibits
was identified by the witness as being the
Vodacom
cell phone data pertaining
to the number
072 372 1856
(item 1.7 in the subpoena),
a number which the State sought to link to accused 6. She identified
exhibit “TTTT” as being a printout
of documentation in respect of
that cell phone number. Heyneke identified exhibit “QQQQ(5)” as
being the cell phone documentation
pertaining to the number
072
565 6571
, item 1.4 in the
subpoena, and the number which the State sought to link to accused 3.
She identified exhibit “SSSS” as being
a profile of the sim card
in question. The witness identified exhibit “QQQQ(6)” as being
the
Vodacom
documentation relating to the number
072
460 6755
and exhibit “UUUU”
as being the sim card profile relating thereto. The number in
question, item 1.3 in the subpoena, was one
which the State sought to
link to accused 1. The witness identified exhibit “QQQQ(7)” as
being the
Vodacom
documentation pertaining to
072
221 2408
, for the period
September to early October 2003, this being the number the State
sought to link to accused 2. She identified exhibit
“VVVV” as
being the
Vodacom
sim card profile relating to such number.
[101] The witness testified that she
personally downloaded all the data she identified as well as the data
supplied to the investigating
officer in the encrypted format. The
data was never tampered with nor changed in any way except to sort it
into chronological order.
The system which delivered the
documentation was designed in accordance with a global system for
telecommunication and is regulated
in terms of law relating to
licence agreements. The witness confirmed that the data was received
from the archives in encrypted form
and then printed in
Excel
form, the format thereby
being altered.
[102] Mr. Jasper Smit, employed by
Vodacom
as manager of billing support, testified that he was responsible for
the integrity of
Vodacom’s
systems as far as the
retrieval of data was concerned. He stated that over the past three
years the provider had experienced no problems
in relation to said
systems and that cell phone data cannot be manipulated. Data files
are kept in the system for a period of six
months and retained for a
number of years in
Vodacom’s
archives. Various arguments
were raised by counsel in support of the submission that the cell
phone documentation was not properly
before Court.
[103] Mr. Spangenberg contended that
the data or information arising from electronic communications must,
in criminal proceedings,
be proved in accordance with the provisions
of
s 15(4)
of the
Electronic Communications and Transactions, Act 25
of 2002
, which reads as follows:
“
A
data message made by a person in the ordinary course of business, or
a copy or printout of an extract from such data message certified
to
be correct by an officer in the service of such person, is on its
mere production in any civil, criminal, administrative or
disciplinary
proceedings under any law… admissible in evidence
against any person and rebuttable proof of a fact contained in such
record, copy,
printout or extract.”
His argument proceeded that the
Vodacom
and
MTN
employees did not qualify as an “officer” nor were the cell phone
records certified as required by s 15(4) of the Act.
[104] However, the clear purpose of s
15(4), assuming that it is applicable to the cell phone data or
documentation at issue in the
present matter, is the placing of such
evidence before a court or tribunal without the necessity of having
to call a witness to prove
the authenticity and veracity of such
documentation. The existence of the section in no way precludes the
State, or any other party
for that matter, from placing such
documentation before a court and proving its authenticity and
accuracy through,
inter
alia
,
viva voce
evidence. In my
view the evidence of Messrs Heyneke, Du Plessis, Smit and Coetzee
adequately established the authenticity and accuracy
of the cell
phone documentation and the submission that it is not properly proved
on this ground is without substance.
[105] Counsel for accused 2 also
argued, at a late stage, that the cell phone documentation had not
been properly proved. The additional
argument which he raised, and
with which counsel for the other accused associated themselves, was
that the subpoenas pursuant to
which the service providers had
furnished cell phone documentation were nullities for want of
compliance with the provisions of Uniform
Rule 54(5), more
particularly in that they had not been signed by the Registrar of the
High Court. Counsel did not indicate, however,
which subpoenas he
referred to. On the assumption that they were those contained in
annexure “EEEE”, the first point to be noted
is that the
subpoenas were issued in terms of s 205 of Act 51 of 1977 out of the
magistrates’ court. They bear, in the first place,
the signature of
the Director of Public Prosecutions pursuant to his request to the
witness to attend before the magistrate of Cape
Town for examination
by the public prosecutor. The subpoenas are counter-signed by the
magistrate of Cape Town who orders all police
officers to subpoena
the witnesses to appear in person before a magistrate on a given day
for examination but with the proviso that
should the witness furnish
the required information to the satisfaction of the authorised
prosecutor prior to the examination date,
he/she will be under no
further obligation to appear before the magistrate.
[106] The reference by counsel to
uniform Rule 54(5) appears to be misplaced since the subpoena was
issued out of the magistrates’
court and therefore s 179(1)(a) of
Act 51 of 1977 would ordinarily be applicable. That section provides
that the prosecutor may compel
the attendance of a person to give
evidence or to produce any document in criminal proceedings “
by
taking out of the office described by the rules of court the process
of court for that purpose
”.
The applicable rule of court is magistrates’ court rule 64 which
requires the subpoena to be issued by the clerk of the court.
The
subpoenas in question do not bear the stamp or the signature of the
clerk of the court. However, the witnesses in question obviously
considered and responded to the subpoenas on the basis that they were
lawful and valid, the process having been signed and issued
by the
Director of Public Prosecutions and the magistrate, Cape Town. In any
event and even if there is some formal defect in the
subpoenas this
does not nullify the evidence given by the service providers pursuant
thereto. Commenting on the practical application
of s 205(1), and
after reviewing the authorities, Du Toit, Commentary on the
Criminal
Procedure Act, published
by Juta, states (at page 23-52 B) that
s 205
does not require the issue of a subpoena. It merely provides that a
magistrate may “require” the attendance of a person concerned
and
this may be done in an informal fashion.
[107] Du Toit points out, furthermore,
that
s 205(1)
has been substituted again by
s 59
of The Regulation of
Interception of Communications and Provision of Communication–related
Information, Act 70 of 2002. S 15 of
that Act deals with the
availability of other procedures for obtaining real-time or archived
communication-related information and
provides as follows:
“
(1)
Subject to subsection (2), the availability of the procedures in
respect of the provision of real-time or archived
communication-related
information provided for in s 17 and 19 does
not preclude obtaining certain information in respect of any person
in accordance with
the procedure prescribed in any other Act.”
[108] It is clear, therefore, that
neither of the challenges raised by the accuseds’ counsel in any
way supports the notion that
the documentary cell phone evidence was
not properly proved by the State. Further, in my view, subject to
adequate proof that individual
cell phone numbers can be attributed
to the accused or other parties involved in the robberies, not only
is such evidence admissible
against the accused, but potentially
carries significant evidentiary weight.
THE WEIGHT OF THE CELL PHONE
EVIDENCE
[109] The cell phone evidence can be
likened to a cobweb, both in its intricate and interlinked nature and
its potential to enmesh
the users of the cell phones in its strands.
[110] I propose to deal with this
evidence, in the main, on an accused by accused basis save for those
aspects which are more conveniently
dealt with on a general basis.
These areas include but are not necessarily limited to, Aspeling’s
cell phone data, and how certain
of the accused’s numbers were
proved from an independent source.
THE EVIDENCE OF THE INFORMER
MENTOOR
[111] Cell phone numbers connected to
the robberies first came to the fore through information provided
through an informer, Mr. Alfred
Mentoor. A policeman,
Detective-Sergeant Kenneth Speed and a Mr. Henry Cottle, a security
official in the employ of BATSA, testified
regarding meetings they
held with Mentoor whilst he was in custody in the Roodepoort area in
late September 2003 and after he had
contacted the police with a view
to furnishing information relating to the Rawsonville and Darling
robberies. Mentoor explained that
he had a cellular phone in his
possession containing the names and cellular phone numbers of persons
involved in the robbery. Speed
accessed the phonebook facility on
Mentoor’s sim card and wrote down the names and numbers displayed.
Mentoor later testified that
accused 1, 2, 3, 6 and 7 were all known
to him. Accused 1’s number was recorded as
072
460 6755
, accused 2 as
072
221 2408
, accused 6 as
072
373 1856
, and accused 7 as
072 270 1704
.
[112] Speed was also involved in
executing a search warrant at the premises of a Ms. Yolanda Zeelie in
Durbanville in an effort to
track down accused 4. From her cell phone
he downloaded the following references to “Vernon”, being accused
4’s Christian name,
in her cell phone’s directory: “Vernon
Liefie, number
082 776 2314
”
and “Vernon No. 2, number
072
105 7155
”.
ASPELING’S CELL PHONE EVIDENCE
[113] Aspeling testified that the cell
phone number which he used from June until the beginning of October
2003 was
072 200 9633
.
His evidence was further that during the first robbery, as a result
of a lack of airtime, he used the cell phone belonging to Jimmy
Maseko who was also involved in the robbery, the latter’s number
being
073 267 9117
.
[114] Analysis of the
Vodacom
data indicates that Aspeling’s cell phone was indeed active in the
Cape Town area around the period of the first robbery, namely,
20 –
24 June 2003 and for the period around the second robbery, that in
Darling, namely, 7 – 12 August 2003. In fact his cell
phone was
used in the immediate vicinity of the crime scene in the Darling
robbery on 12 August 2003. The records also reveal that
Aspeling’s
cell phone was active in the Eastern Cape on 18 September 2003,
namely, the time, according to his evidence, when he
went down to
Port Elizabeth on a scouting trip with accused 1 and 2.
[115] An analysis of the
MTN
cell phone data relating to the number Aspeling attributes to Jimmy
Maseko indicates that the cell phone was indeed active in the
immediate vicinity of the BATSA depot in Montague Gardens and on the
crime scene on 24 June 2003 – the day of the commission of
the
robbery in Rawsonville. In short, then, Aspeling’s cell phone data
and the data emanating from the number attributed to Jimmy
Maseko
corroborate Aspeling’s evidence of his involvement in the first two
robberies and the scouting trip to the Eastern Cape.
The evidence was
that after being arrested for his part in the first robbery Jimmy
Maseko escaped from custody but not before Detective-Inspector
Jonker, then the investigating officer, completed an information
profile of Maseko for use by the Serious and Violent Crimes Unit.
Jonker obtained certain personal information from Maseko for use in
that form including two cell phone numbers one of which matched
the
number given by Aspeling as Maseko’s number.
THE ANALYSIS OF THE PHONES
SEIZED FROM THE ACCUSED
[116] Various police officers
testified concerning the cell phones seized from the accused during
the search of their residences
on the night of their arrest, namely,
8/9 October 2003. The evidence was that the cellular phones seized
during the arrest were handed
to Superintendent Du Plessis who was in
overall charge of the operation on the night in question. The phones
were sealed in forensic
bags either by the arresting officers or by
Du Plessis himself and the particulars of the phones were recorded on
the forensic bags.
Superintendent PJ Viljoen received in due course a
sealed forensic bag which contained cell phones and ten sim cards.
Through a network
of evidence the State was able to match, in most
instances, such phones and sim cards to individual accused and, upon
an examination
of the cell phone data relating to such cell phone
and/or sim card, link the phone to one or more of the robberies. I do
not propose
to deal with the detail of this evidence
en
bloc
but rather deal with
it
seriatim
as
I deal with each of the accused.
[117] General criticisms were made by
defence counsel of the reliability and accuracy of the cell phone
data. The first such challenge
was based on what was said to be a
lack of technical competency on the part of the
Vodacom
and
MTN
representatives
to testify regarding the integrity of their data recording and
retrieval systems and the accuracy thereof. As I stated
earlier, in
my view this challenge has no substance. The second criticism was
that because of various alleged discrepancies found
in certain
billing records, the data as a whole was unreliable. One example was
an instance where a phone call appeared to have been
made from a base
station in George when this would have been physically impossible
and, secondly, a large discrepancy in the number
of phone calls made
and received over a certain period by a cell phone number. The
confusion relating to the base station was adequately
explained by
the service provider’s representative. Even assuming the lack of an
adequate explanation for the second discrepancy,
a point sprung upon
the witness, the existence of this one discrepancy amidst hundreds if
not thousands of pages of cell phone documentation,
whose accuracy
was uncontested, in no way serves to discredit the evidence’s
general accuracy and reliability.
[118] During cross-examination of one
or more police witnesses defence counsel demonstrated that, contrary
to the witness’ belief
up to that point, it is possible to
manipulate the so-called IMEI number of the cell phone so that the
same cell phone appears to
have two such numbers. That evidence alone
does not, in my view, assist the accused in contesting the accuracy
or reliability of
the cell phone data. A number of the accused who
testified repeatedly suggested that incriminating cell phone data had
been fraudulently
contrived by the police or BATSA to falsely
implicate them in the robberies. These allegations were never backed
up by any evidence
at all. When one has regard to the volume and
complexity of the cell phone documentation it will be appreciated
that a conspiracy
by the police or BATSA to falsely implicate one or
more of the accused by manipulating cell phone data or phone
directories would
require an extraordinarily detailed and
sophisticated conspiracy involving not only a good number of police
officials and BATSA security
officials but also, in all probability,
MTN
and
Vodacom
employees. If I understood the submissions of the defence correctly
this conspiracy was embarked upon with a view to falsely implicating
innocent persons in the three robberies. In my view the conspiracy
allegations are both unsubstantial and completely far-fetched.
[119] The cell phone evidence went
further than simply placing the phones of various accused at the
scenes of one or more robberies.
It also recorded numerous linkages
between the accused as they communicated with each other before,
during and after the robberies
and during scouting expeditions. The
State led the evidence of a Mr. Peter Schmitz, an expert in the area
of geographic profiling
and a field he termed “geo-infomatics”.
On the basis of the cell phone data supplied to him by the police as
well as BATSA’s
data regarding the electronically logged movement
of the three BATSA trucks involved in the robberies as recorded in
their electronic
tracking system, the witness produced maps depicting
such cell phone activity by combining the data. He linked calls and
linked the
cell phone locations using call tower identification and
on this basis prepared four maps each in respect of the Rawsonville
and
Darling robberies, two in respect of the first Kinkelbos robbery
and two in respect of the second Kinkelbos robbery.
[120] The maps present a damning
picture of how the robberies were accompanied, preceded and followed
by cell phone activity linking
various cell phone numbers attributed
to certain of the accused involved in the robberies. They both
illustrate and confirm Aspeling’s
general account of the dates,
timing and chronology of the robberies and much of his evidence
concerning the role of a number of
the accused therein.
THE CASE AGAINST INDIVIDUAL
ACCUSED
ACCUSED NUMBER ONE AND TWO
[121] I now propose to focus on the
case of each accused. Accused 1 did not testify. However, accused 2,
his brother, did. In doing
so he made extensive reference to accused
1. The details of his defence, in many instances, covered accused 1
as well. Accordingly
I shall deal with the cases of accused 1 and 2
together.
[122] Aspeling implicated accused 1 in
the first two robberies. He implicated accused 1 in the scouting
expedition in respect of the
third robbery and then in Aspeling’s
robbery immediately after the commission of the Kinkelbos robbery.
Aspeling identified accused
1 as having used a firearm in the
confrontation in Lenasia South on 3 October 2003. Independent
evidence directly implicating accused
1 was that relating to the
wheel clamping of accused 1’s red
Jetta
at the Waterfront, Cape Town on 9 August 2003, three days before the
Darling robbery and the discovery of police insignia and police
bullet-proof jackets in the ceiling of the dilapidated house on the
property owned by him, adjoining his own residence. There was
also
the evidence that the accused’s red
Jetta
was found outside his
residence with a shattered window and with himself inside shortly
after the shooting incident in Lenasia South.
On the night of his
arrest the selfsame vehicle was searched and certain deposit slips,
one of them recording a substantial payment
to a certain Isgak Isaacs
in Grassy Park, was found.
[123] Notwithstanding this large body
of incriminating evidence accused 1 chose not to take the stand.
Instead he relied upon evidence
given on his behalf by accused 2.
[124] Aspeling similarly identified
accused 2 as being deeply involved in the first and second robbery,
in a scouting expedition to
Port Elizabeth and in Aspeling’s
robbery and hijacking after the commission of the Kinkelbos robbery.
Aspeling furthermore identified
accused 2 as a central figure in the
shooting incident in Lenasia South on 3 October 2003 when he was
wounded. When accused 2 was
arrested seven days later he was on
crutches recovering from a bullet wound to his thigh. A large bundle
of police uniforms and insignia
was found in an outhouse on his
property on 9 October 2003 when accused 2 was arrested.
CELL PHONE EVIDENCE RELATING TO
ACCUSED NUMBER ONE
[125] Mentoor furnished accused 1’s
number as
072 460 6755
under his first name, “Selwyn”. That same number was found on the
phone directory of phones seized from accused 3 and 7. The
same
number was given by Aspeling in respect of accused 1. Two phones and
three sim cards were seized from accused 1 upon his arrest.
Evidence
of a subscriber profile from the
Vodacom
representative linked one
of the sim cards to that particular number. The data relating to that
telephone number indicates that the
cell phone was active on or in
the immediate vicinity of each of the three robbery scenes.
CELL PHONE EVIDENCE RELATING TO
ACCUSED NUMBER TWO
[126] Mentoor testified that accused 2
used the cell phone number
072
221 2408
. The same number
was found on the phone directory of phones seized from accused 3 and
7 under name of “Virgil” and “Viega”.
Two cell phones and two
sim cards were seized from accused 2’s premises upon his arrest.
One of the sim cards was identified by
the
Vodacom
representative as linking
to the aforementioned cell phone number. An analysis of the cell
phone data relating to such number indicated
that the phone number
was active in the vicinity of the crime scene on 2 October 2003
during the commission of the Kinkelbos robbery.
[127] Accused 2 gave evidence and
called three witnesses. He denied his involvement in any of the three
robberies or in the hijacking
and robbery of Aspeling. He raised an
alibi defence in respect of the first robbery stating that he was in
Johannesburg at the time
and attended the funeral of a friend, one
Reggie Marais, on Saturday, 21 June 2003. He handed in a funeral
programme listing himself,
accused 6 and accused 7 as pallbearers. He
testified that his brother, accused 1, also attended the funeral.
When asked why his alibi
in respect of the first robbery was not put
to Aspeling he could give no answer. Questioned regarding the details
of the funeral
he was vague.
[128] The two witnesses whom he called
to substantiate his alibi, Mrs. Eleanor Marais and Mr. Josia Van der
Merwe, gave unsatisfactory
evidence. The former stated that both
accused 2 and 1, a paraplegic, were pallbearers, later correcting
this to say that only accused
2 was a pallbearer. She was uncertain
even of the date of the funeral. A contradiction arose between
Marais’s evidence that accused
1 and 2 were in the house and
accused 2’s evidence that they sat outside in the car.
Significantly, the programme reflects accused
6 and 7 as pallbearers
and Aspeling’s evidence was that they were indeed not involved in
the first robbery.
[129] Accused 2 denies that he was in
Cape Town at the time of the Darling robbery on 12 August 2003.
Interestingly, he testified,
initially that his birthday was on 10
August but then changed this to 12 August. He denied, however, that
he was taken to Cape Town
Airport by Aspeling on the night of 9
August 2003 to fly back to Johannesburg to celebrate his birthday, as
Aspeling had testified.
Accused 2 gave an account of his activities
over the period and called an employee, Mr. Josia van der Merwe, to
confirm that he was
busy with taxi duties and also that he was at the
funeral. This witness’s evidence was very poor and he could give no
satisfactory
explanation as to how he could remember seeing accused 1
and 2 and other accused at the funeral after having been first
approached
to give evidence in this regard two and a half years after
the funeral.
[130] In regard to the third robbery,
accused 2 denied being part of the scouting expedition to Port
Elizabeth on or about 17 September
2003 but testified that he was
involved in a trip to Port Elizabeth with accused 1 and Aspeling on
24 and 25 September 2003. His
evidence in this regard is gainsaid by
Aspeling’s cell phone records which do not place him in Port
Elizabeth at this time. Accused
2 testified, furthermore, that at the
time of the Kinkelbos robbery Aspeling had called him and accused 1
from Port Elizabeth and
asked them to come down and escort him back
to Johannesburg because he was afraid that accused 3 and his people
would attack him.
According to accused 2 Aspeling was fetching
“goods”, and that he, accused 2, had driven down in a
BMW
motorcar belonging to
one “Clint” accompanied by Denzil Boyles and accused 1. These
details, namely, that he was in a
BMW
motorcar and accompanied by Denzil Boyles and his brother matched
Aspeling’s evidence.
[131] Other details where his evidence
dovetails with that of Aspeling is that the latter drove a truck and
they stopped at the
Formula
One
hotel in Alberton where
they slept the night. It will be recalled that there was evidence
that accused 1’s credit card was used
to pay for the hotel room
even though he was not present at the time. Accused 2 explained his
and accused 1’s participation in
the Port Elizabeth trip on the
basis that accused 2 owed money to Aspeling as a result of having
purchased “stamps” from him.
[132] Suffice it to state regarding
this alleged debt owed by accused 2 to Aspeling that the version
surfaced very late in the day
and remained extremely vague
throughout. Also remarkable in this regard was accused 2’s
vagueness regarding details of the scouting
trip and how willing he
and accused 1 were to jump into a car and accompany Aspeling to Port
Elizabeth and, on another occasion,
escort him back at the drop of a
hat for no apparent reward. Also, improbable, was accused 2’s utter
lack of curiosity as what
“goods” Aspeling was transporting which
had so excited the interest of accused 3 and others.
[133] Accused 2 denied that the cell
phone number attributed to him was his and denied that his trip to
Port Elizabeth to escort Aspeling
back from Port Elizabeth had ever
taken him anywhere near the vicinity of Kinkelbos. This evidence is
belied by the cell phone data
placing his phone at or near the scene
of the Kinkelbos robbery and the post-Kinkelbos hijacking.
[134] As far as the Lenasia shooting
was concerned accused 2 was constrained to admit that he had been
shot and wounded in the incident.
According to him however the only
aggressor had been Aspeling who had arrived at the scene in a white
Golf
accompanied by various unidentified black men. Without any
explanation Aspeling had demanded his “stamp money” and pulled
out
a firearm whereupon accused 2 ran away and was shot.
Notwithstanding this Aspeling had loaded him into the
Golf
and taken him to hospital.
All this took place only hours after he had parted from Aspeling at
the
Formula One
hotel, Alberton, apparently on good terms.
[135] Regarding
his arrest accused 2 denied that the police clothing and insignia
found by the police, according to their evidence,
in his “wendy
house” were ever there. He denied that the cell phone attributed to
him was his and gave another number as his
cell phone number. Quite
apart from the fact that the former number appeared on two deposit
slips in his name, accused 2 furnished
no evidence that the number
which he claimed was in fact his.
[136] The accused was at a loss to
explain why his counsel had not put it to various witnesses that the
number attributed to him was
not his. Nor could the accused give a
satisfactory explanation why, if this was his cell phone number at
the time of the various
robberies, he himself did not subpoena the
service provider for his billing records and thereby prove his
presence in Johannesburg
at the relevant time. Nor could he give any
explanation for the evidence from a number of sources that the cell
phone number which
the State attributed to him was in fact his. As
far as the Waterfront clamping incident was concerned, accused 2
denied being in
Cape Town at the time but and stated that accused 1
was in Cape Town at the time and had borrowed his vehicle.
[137] Accused 2 initially made a
reasonably good impression when testifying in chief, speaking in a
very confident manner. However,
he soon demonstrated a marked
inability to answer any question directly, instead going off at a
tangent and repeatedly arguing his
case instead of furnishing facts
or factual replies. The ultimate impression left by accused 2 was an
exceptionally poor one. He
was argumentative and evasive in the
extreme. He would frequently repeat the question asked by the
cross-examiner not because he
did not hear it but in order to play
for time. He made numerous unfounded claims of a conspiracy against
him and his fellow accused.
Few of these allegations were put to the
State witnesses by his counsel. For these omissions the accused could
offer no explanation
although he did claim that on most occasions he
had advised his counsel thereof.
[138] When pressed to substantiate
these conspiracy claims accused 2’s answers came down to no more
than argument or his belief
therein, occasionally bolstered by one or
two facts, usually of limited relevance. Many of his replies in
cross-examination were
speculative and argumentative. His evidence
varied between detailed and extremely vague. He would often supply
considerable detail
when testifying about something which was not in
dispute but was often vague in the extreme when pressed for detail
regarding his
exculpatory explanations.
[139] Accused 2 did give a
considerable degree of detail relating to some aspects of Aspeling’s
alleged involvement in other misadventures.
He gave a detailed
account of how Aspeling had allegedly been pursued by accused 3, how
he eventually admitted to robbing the latter’s
aunt Ruby of a large
sum of money and had promised to pay it back in instalments after
seeking the help and intercession of accused
1. According to accused
2 a complicated deal was then entered into whereby Aspeling gave
accused 2 stolen stamps who then sold them
to his cousin and promised
to pay R20 000,00 or R30 000,00 back to Aspeling. Accused 2 claimed
that he went off on the Eastern Cape
expedition in the hope that
Aspeling would let him off the balance of the debt. This version was
only put to Aspeling almost in passing
and then only in the broadest
and vaguest of terms. Another feature of the accused’s evidence was
the manner in which he sought
to draw accused 1 into virtually
everything he did thereby neatly furnishing him with an alibi to
which accused 1 did not testify.
[140] The third witness called by
accused 2 was a Mr. Samuel Julies, an inspector in the service of the
South African Police Services
who had been stationed for many years
at Ennerdale police station. He testified that he knew accused 1 and
2 and several of the other
accused. The purpose of his evidence
seemed to be to blacken Aspeling’s name by alleging that he was
arrested on several occasions
for contravening the liquor laws and
for the possession of stolen property arising out of a robbery at the
Big Apple Warehouse
.
Under cross-examination the witness could give no detail to
substantiate his allegations and was excused from the witness box and
called back a long time thereafter to furnish such detail. He was
unable to do so. In further cross-examination it emerged that his
trip to and from Cape Town from Johannesburg had been funded by
accused 2’s wife and that he had been suspended from the police
force for a long time on charges of defeating the ends of justice and
corruption. This witness created an extremely poor impression
and was
the first of a number of policemen who had worked at Ennerdale police
station called on behalf of one or more the accused
and whose
evidence was most suspect.
[141] As I have stated accused 2 was
an extremely poor witness and his evidence bore all the hallmarks of
having been contrived at
a late stage to meet the State case against
him. Important elements of his defence were either not put at all to
the State witnesses
or only in the sketchiest of detail.
[142] The correct approach to the
evaluation of alibi evidence was set out by Holmes AJA (as he then
was) in
R v Hlongwane
1959 (3) SA 337
(A) at 340 H – 341 B as follows:
“
The
legal position with regard to an alibi is that there is no
onus
on an accused to establish it, and if it might reasonably be true he
must be acquitted. R v Biya
1952 (4) SA 514
(A). But it is important
to point out that in applying this test, the alibi does not have to
be considered in isolation. I do not
consider that in R v Masemang
1950 (2) SA 488
(A), Van den Heever JA had this in mind when he said
at 494 and 495 that the trial Court had not rejected the accused's
alibi evidence
"independently". In my view he merely
intended to point out that it is wrong for a trial Court to reason
thus: "I
believe the Crown witnesses. Ergo, the alibi must be
rejected." See also R v Tusini and Another
1953 (4) SA 406
(A)
at 414.”
The
correct approach is to consider the alibi in the light of the
totality of the evidence in the case, and the Court's impressions
of
the witnesses. In
R v Biya
1952 (4) SA 514
(A), Greenberg JA said at 521:
"…if on all
the evidence there is a reasonable possibility that this alibi
evidence is true it means that there is the same
possibility that he
has not committed the crime."
Accused 2 raised an alibi defence as
did accused 1 albeit through accused 2’s evidence. Both chose to
disclose their alibis to the
Court at a late stage and this is a
factor which must be taken into account in considering their
credibility as witnesses.
[143] Aspeling gave clear and detailed
evidence implicating accused 2. That evidence was corroborated by
cell phone evidence, emanating
both from Aspeling and from accused
2’s own cell phone. Other evidence pointed towards accused 2’s
involvement in the robberies,
notably the evidence of the finding of
police uniforms and insignia on his premises and the deposit slip.
Accused 2’s response
was an unconvincing denial, weak alibi
evidence and unsubstantiated and wide-ranging allegations of a plot
against him and his fellow
accused. He was an extremely poor witness.
His witnesses fared little better. Weighing the evidence as a whole I
have no hesitation
in accepting Aspeling’s evidence in relation to
accused 2 and rejecting the latter’s version as not reasonably
possibly true.
ACCUSED NUMBER ONE
[144] If anything, the case made out
by the State against accused 1 was much more damning. Cell phone
evidence implicated him in each
of the three robberies and elicited
no reply from him. In
S v
Boesak
[2000] ZACC 25
;
2001 (1) SACR 1
(CC)
at 11d – 12a the Constitutional Court confirmed that a decision not
to give evidence might have adverse consequences for an
accused,
notwithstanding that in terms of the Constitution, Act 108 of 1996,
an accused person has the right to remain silent. The
Court expressed
itself in the following terms:
“The
right to remain silent has application at different stages of a
criminal prosecution. An arrested person is entitled to remain
silent
and may not be compelled to make any confession or admission that
could be used in evidence against that person. It arises
again at the
trial stage when an accused has the right to be presumed innocent, to
remain silent, and not to testify during the proceedings.
The fact
that an accused person is under no obligation to testify does not
mean that there are no consequences attaching to a decision
to remain
silent during the trial. If there is evidence calling for an answer,
and an accused person chooses to remain silent in
the face of such
evidence, a court may well be entitled to conclude that the evidence
is sufficient in the absence of an explanation
to prove the guilt of
the accused. Whether such a conclusion is justified will depend on
the weight of the evidence. What is stated
above is consistent with
the remarks of Madala J, writing for the Court, in
Osman
and Another v Attorney-General, Transvaal
,
when he said the following:
'Our
legal system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a prima facie case, an
accused who
fails to produce evidence to rebut that case is at risk. The failure
to testify does not relieve the prosecution of its
duty to prove
guilt beyond reasonable doubt. An accused, however, always runs the
risk that, absent any rebuttal, the prosecution's
case may be
sufficient to prove the elements of the offence. The fact that an
accused has to make such an election is not a breach
of the right to
silence. If the right to silence were to be so interpreted, it would
destroy the fundamental nature of our adversarial
system of criminal
justice.’”
[145] The
State established a strong
prima
facie
case against accused
1. He chose not to answer it and, to the extent that his defence was
dependent on evidence given by accused
2 and his witnesses, it must
suffer the same fate as that of accused 2.
[146] In
the circumstances I accept the evidence of Aspeling implicating
accused 1 corroborated as it is by damning cell phone evidence
and
other corroboratory material as set out above. Accused 1’s version,
insofar as it was put before Court, is rejected as false
beyond any
reasonable doubt.
[147] I
do not propose, at this stage, to analyse which of the charges
brought against accused 1 and 2 has been properly made out
by the
State on the accepted evidence but shall do so at a later stage.
ACCUSED NUMBER
THREE
[148] Aspeling’s
evidence implicated accused 3 directly in the first, second and third
robberies. When the police arrested him on
9 October 2003 they seized
his cell phone and a white
Golf
4
motor vehicle which is
the subject matter of the theft charge in count 14.
CELL PHONE EVIDENCE
[149] Mentoor
testified to knowing accused 3 and, that he had given his cell phone
number to Cottle, the number being
072
565 6571
. Cottle, BATSA’s
security manager, testified that he was in attendance at accused 3’s
arrest. Accused 3 had denied being Julian
or Jan van Heerden. At that
stage Cottle had memorized the cell phone number which had been
attributed to accused 3. He used a cell
phone belonging to one of the
police officers to dial that number and the cell phone which had just
been confiscated from accused
3 rang in their presence, putting the
issue of the identity of accused 3 and the ownership of the phone
number, beyond any doubt.
That phone, a
Nokia
6210
was seized. Inspector
Ramogobedi Berends testified that accused 3 himself gave him his cell
phone number as
072 565 6571
and the pin number of the phone at his request upon his seizure of
the phone.
[150] Detective-Inspector
Jonker testified that names and cell phone numbers were downloaded
from the phone and included numbers later
attributed to accused 6, 8,
Jimmy Maseko, accused 1, Aspeling, accused 4, accused 2 and accused
7. The phone was later examined by
Superintendent Viljoen. Cell phone
data was obtained from
Vodacom
relating to the sim card
found in the phone. Analysis of the data indicated that the cell
phone was active on or in the immediate
vicinity of each of the three
robbery scenes. The data furthermore recorded two incoming calls on 3
October 2003 at 09:08:43 and
09:08:48 respectively from the number
058 813 2641
.
That number was proved by the State, through the evidence of a former
employee of a shop in Frankfort and by a
Telkom
official to have been allocated in 2003 to the
Golden
Star Supermarket
in Brand
Street, Frankfort. This evidence dovetailed with Aspeling’s that he
had called accused 3 from a café in Frankfort after
being hijacked
by accused 1 and 2 after the Kinkelbos robbery.
[151] Further
analysis of cell phone data relating to the number attributed to
accused 3 on the day of the Rawsonville robbery shows
the cell phone
was active at 08:18 near Klapmuts and at 08:50 near Rawsonville until
09:18, the same time at which the BATSA truck
was robbed. The cell
phone then moves back to Cape Town and, later that day, in the
direction of Gauteng. On the day of the Darling
robbery the cell
phone number was active in Cape Town and then in the region of
Montague Gardens, where BATSA’s depot was situated.
The cell phone
was then active on the West Coast at around 08:41 to 09:00, the
latter being the time when the Darling robbery took
place. The phone
then moves back towards Gauteng.
[152] Accused
3 testified in his own defence that he was neither involved in nor
present at the scene of any of the three robberies.
Regarding the
first robbery he testified that he too attended Reggie Marais’s
funeral and that on the night prior to the Rawsonville
robbery he was
engaged in a business deal with Alfred Mentoor regarding the purchase
of certain motor vehicle wheels. None of the
details of these
dealings were put to Mentoor when he testified. In regard to the
second robbery the accused’s alibi defence was
that he was in
Johannesburg purchasing a vehicle from one Kenneth Coppen and, as
luck would have it, was at Ennerdale police station
that very day
when an affidavit recording details of this sale was attested to by
Kenneth Coppen, since deceased. Furthermore, on
the day of the
Kinkelbos robbery he was in Johannesburg when his
Golf
vehicle, later confiscated
by the police, was being tested for roadworthiness.
[153] Accused
3 gave the most detailed account of the alleged robbery of his aunt
Ruby of the amount of R109 000,00 in cash in Ennerdale.
He testified
that Aspeling eventually admitted to him that he had robbed his aunt
and had, moreover, paid him back R30 000,00 in
the presence of a
policeman. He had threatened Aspeling that he would pursue a theft
case against him if he did not pay the balance
owing and this,
according to accused 3, was the reason why Aspeling had a grudge
against him and had falsely implicated him in the
three robberies.
[154] Accused
3 was cross-examined regarding the original affidavit he handed up
purporting to record the purchase of a vehicle from
one Kenneth
Coppen on 12 August 2003. He had to admit that he had furnished a
false address in the affidavit and that he had never
registered the
vehicle in his name. In further evidence on this issue he testified
that he intended calling Kenneth Coppen as a witness
since he had now
heard that he was alive. In the event he never did call him as a
witness. To substantiate his alibi evidence in
relation to the first
robbery accused 3 called a witness, an Inspector Thomas Ralekgogo,
employed at the vehicle identification section,
SAPS, Soweto. This
witness was called to confirm that he administered the oath relating
to the affidavit (exhibit “J x 6”). According
to him Coppen, the
deponent, was there and signed the document and the buyer, accused 3,
“must” have been present although he
was unable to identify him
in court. Under cross-examination it became clear that the witness
had virtually no independent recollection
of the circumstances in
which the affidavit was signed and attested. He made no entry in his
pocket book of the incident. The affidavit
itself is written on a
photocopied SAPS form and was one of several such affidavits on
exactly the same form produced by various
accused by which they
sought to confirm their presence before a policeman at Ennerdale
Police Station, in Johannesburg, on or about
the days of the
robberies. The witness stated that he had been approached to come to
court by Captain Segapo, another of accused
3’s witnesses whose
evidence will be discussed shortly. Suffice it to say this
introduction did not enhance the already limited
credibility of this
witness’s evidence.
[155] Accused
3 also sought to bolster his alibi in respect of the second robbery
through his evidence that he accompanied his ill
son to a doctor
together with the son’s mother on 8 August 2003. To this end he
handed in a receipt issued by the doctor in respect
of payment for
his medical services. The receipt was made out to the infant son,
Lester Stevenson and as such takes the matter no
further. Accused 3
did not call the son’s mother as a witness in this regard. He
alleged that on 13 August, the day after the Darling
robbery, he and
the child’s mother again took the child to the doctor for a
consultation and in this regard he tendered yet a further
receipt.
The receipt was issued to Mast. L Stevenson and again did not support
his alibi. No explanation was given as to why his
son’s mother,
Miss Glynis Stevenson, was not called as a witness for the accused.
[156] In
respect of the third robbery the accused’s alibi again related to a
motor vehicle, on this occasion a
Golf
which he claimed to have sold to one ST Da Costa. According to
documentation which he handed in the vehicle was road tested on the
day of the Kinkelbos robbery, namely, 2 October 2003. All that the
documentation establishes, however, being the motor vehicle license
and licence disk issued to the said ST Da Costa and then only on 27
October 2005, is therefore that the vehicle was subjected to
a
roadworthy test on 2 October 2003. As to who its owner was at the
time or who attended the roadworthy test the document is silent.
Accused 3 claimed that he had sold the vehicle in question to Da
Costa on 30 September 2003 notwithstanding that it was still in
his
possession when he was arrested on 9 October 2003. He explained that
he had still to fit certain tyres to the vehicle. It transpired
that
the Da Costa in question was accused 3’s cousin but he was not
called by accused 3 to confirm that he had purchased the vehicle
from
accused 3, that accused 3 and not he had attended at the roadworthy
test on 2 October 2003 and why it was that, although Da
Costa had
allegedly purchased the car ten days previously, it was found in
accused 3’s possession when he was arrested on 9 October
2003. The
accused, although declaring his intention to call Glynis Stevenson,
the doctor, his cousin – Shaun Da Costa – and Kenneth
Coppen as
witnesses, ultimately did not call any of them.
[157] Captain
Segapo of the SAPS, Protea-Glen was called by accused 3 to
substantiate evidence by him and several of the accused that
Aspeling
had robbed accused 3’s aunt Ruby of cash in the region of R90
0000,00 to R109 000,00, had confessed to this crime and
was in the
process of redeeming his indebtedness when the Kinkelbos robbery took
place. This, it was said by various accused and
argued on their
behalf, was part of the motive for Aspeling falsely implicating
various accused in the robbery. Given the importance
which it assumed
in the defence of various accused these allegations had extremely
humble origins.
[158] The
topic was first raised by Aspeling when he testified in chief that
accused 1 had explained at the time of the scouting trip
to Port
Elizabeth that accused 3 would not be involved in the robbery because
he, accused 3, was accusing accused 1 of having been
behind the
robbery of R90 000,00 odd from his aunt Ruby. In cross-examination
the subject was fleetingly touched on by counsel for
accused 1 who
put it to Aspeling that he had approached accused 1, 2 and 3 and told
them that he was going to bring goods down from
Port Elizabeth but
was scared of accused 3 because he and his family suspected him
(Aspeling) of stealing money from them. Aspeling
rejected that
proposition as a lie and the matter was taken no further. The same
proposition was put to Aspeling by counsel on behalf
of accused 2 but
this time in a slightly different form. It was again flatly denied by
Aspeling who pointed out that after the robbery
he, Aspeling, had sat
at accused 3’s house, apparently also occupied by his aunt Ruby,
for hours and that the matter was never
raised. When Aspeling was
cross-examined by counsel for accused 3 the subject of the alleged
robbery of aunt Ruby was not even raised
with him.
[159] Accused
3’s witness, Captain Segapo testified that he had had dealings with
accused 3 who had told him in effect that Aspeling
had stolen the
monies from his aunt Ruby. He was present at an encounter at the
Ennerdale police station when Aspeling handed over
a white envelope
to accused 3 saying it was the money which he had taken from the
house during the robbery. In return for this accused
3 said that he
was going to withdraw the case against Aspeling. Segapo stated
however that he was not the investigating officer in
the robbery and
that, notwithstanding the apparently incriminating nature of
Aspeling’s conduct which he witnessed, he did not
file a statement
or make an entry in the investigating diary or any docket relating to
the alleged robbery. Nor, it appears, did
he ever even contact the
investigating officer in the matter to advise that the matter was
resolved, the culprit having been found
and having admitted to his
guilt.
[160] Although
accused 3 had testified that the handing over of money took place in
the parking area of the Checkers/Shoprite centre
near the police
station with Segapo in the vehicle, Segapo himself said that it took
place outside the Ennerdale charge office and
outside the vehicle.
His evidence contained not only internal contradictions but also
further discrepancies between his account of
what took place
involving Aspeling and accused 3 and the latter’s version. Segapo
struggled to explain why he played any role in
the robbery case and
was not able to take issue with the prosecutor’s proposition that
the docket in question had been closed as
“undetected”. When
asked why he had not arrested Aspeling once he handed over the large
sum of money to accused 3 and thereby
damningly admitted his
complicity in the robbery, Captain Segapo’s answer was, strangely,
that he did not have “enough evidence”.
Nor did Segapo take issue
with the further proposition by the prosecutor that there had been an
abrupt mass transfer of policemen
out of Ennerdale police station
including Captain Segapo and a previous witness, Inspector Julies, on
account of “problems” within
the police station.
[161] Captain
Segapo was yet another in a long line of policemen who had been
stationed at Ennerdale police station, the area in which
accused 1,
2, 3, 6, 7 and 10 had long resided, and who were apparently eager to
travel down to Cape Town to testify on behalf of
one or more accused
and, in some cases, to blacken Aspeling’s name on the basis of
allegations which, once probed, proved to be
unsubstantiated. Apart
from the fact that Captain Segapo’s description of his involvement
in the matter amounted to highly unorthodox
and unprofessional police
conduct, he left a poor impression as a witness.
[162] Accused
3 was another extremely talkative witness who preferred to argue his
case rather than answer questions directly. On
many occasions the
prosecutor would eventually interrupt him to ask him what the
question which had been put to him was only to find
that the accused
had quite forgotten the question in the course of arguing his case on
some or other point. As previously mentioned
he promised to call
certain witnesses to substantiate his alibi but they were never
forthcoming.
[163] Accused
3 was unable to furnish any acceptable explanation as to why it was
never put to Aspeling that he had confessed to robbing
accused 3’s
aunt Ruby and had even gone so far as to pay back a large sum of
money to accused 3 in the presence of a policeman.
In my view, the
only inference which can be drawn in relation to this aspect of
accused 3’s evidence is that the entire version
was a late
fabrication. Confirmation of this view is the fact that the central
figure in the entire version, accused 3’s aunt Ruby,
was not called
as a witness. She would have been able to cast a great deal of light
on the entire subject but no explanation was
ever given for the
failure to call her. Accused 3’s version of Aspeling’s alleged
involvement in the robbery bristled with improbabilities.
The basis
upon which he learnt that it was Aspeling who committed the robbery
was never made clear. Yet when he found Aspeling and
met him at
accused 1’s house, Aspeling meekly admitted to the robbery and
apologized.
[164] The
account of the deal done between Aspeling and accused 3, also
involving accused 1 and 2 playing a mediatory role, is replete
with
detail including several meetings. However, not even the broadest
outline of this version was put to Aspeling. Accused 3 also
struggled
to explain why it was that, according to an affidavit allegedly made
by aunt Ruby in the criminal docket, she had said
that a white man
and four black men had robbed her. The prosecutor eventually put it
to accused 3 that after accused 1’s counsel
had fleetingly referred
to Aspeling as being the person who had robbed aunt Ruby accused 3
had decided that this was a plausible
story which he could embellish.
This observation, it appears was not far off the mark.
[165] The
accused denied giving his cell phone and pin number to the police on
the night of the arrest but was unable to explain its
presence on the
forensic bag. Accused 3 also took refuge in the claim that the police
were involved in a far-reaching conspiracy
against him and his fellow
accused including Alfred Mentoor, Aspeling and Cottle. With regard to
the witness Mentoor, it was part
of his case that the former had
assaulted him because he owed him money and tyres. This was not put
to Mentoor when he testified.
Interestingly, it was Aspeling who
first testified that Mentoor had indeed thrashed accused 3. An
important element of accused 3’s
evidence was that a certain
“Humphrey” was involved with Aspeling in the robbery of his aunt
Ruby. Accused 3 and his colleagues
had sought and found Humphrey,
then assaulted him and taken his car as part compensation for the
robbery. Notwithstanding this, accused
3 had not told his counsel of
this and he furnished a risible reason when asked why he had not
furnished instructions to his counsel
about this aspect so that it
could be put to Aspeling. It was common cause that up to the time of
testifying accused 3 had never
made a statement to the police
regarding his knowledge of and dealings with Aspeling in relation to
the latter’s alleged role in
aunt Ruby’s robbery.
[166] Regarding
the Lenasia South shooting incident accused 3 broadly supported
accused 2’s version which portrayed Aspeling, backed
by four
unknown black men, as having been the only aggressor albeit for no
apparent reason other than his demand for his “stamp
money”. He
too testified that the black men accompanying Aspeling had,
perplexingly, loaded the wounded accused 2 into Aspeling’s
car and
driven him away presumably to Lenmed Clinic.
[167] Accused
3 testified that he had not laid a criminal complaint in relation to
this incident but that accused 1 had. The prosecutor
then read out to
accused 3 accused 1’s sworn version in the criminal complaint,
which describes a
Golf
motor vehicle pulling up, four black men jumping out, firing shots
but then jumping into accused 1’s car and driving wildly away
with
him only to stop his vehicle outside his house, jump out and run
away. The statement makes absolutely no mention of Aspeling.
Accused
3 could not explain this rather extraordinary omission nor the
further discrepancies which the statement threw up.
[168] It
was put to accused 3 that his cell phone records indicated that he
was in Frankfort on 3 October 2003 which allegation he
could do no
more than deny. (See exhibit QQQQ 4 relating to 3 October 2003.)
[169] Regarding
his alibi for the Rawsonville robbery, accused 3, although
maintaining that he attended Reggie Marais’s funeral,
stated that
he was not in the church and nor was he at the grave. He had no
explanation for the incriminating cell phone records
placing his
phone at the scene of all three robberies beyond his unsubstantiated
claim that it was not his cell phone number. However,
the phone
directory on that cell phone number downloaded by the police, and
which includes an aunt Ruby, points directly to him.
Accused 3’s
evidence concerning Aspeling’s alleged involvement in his aunt
Ruby’s robbery was not only far-fetched but was
not put to
Aspeling.
[170] What
the Court then has is Aspeling’s detailed evidence implicating
accused 3 in all three robberies, cell phone data recording
the
presence of accused 3’s phone at the scene of each robbery and with
the cell phone activity tying in completely with Aspeling’s
account
of how these robberies played out. This account included the
culmination to the third robbery with Aspeling being fetched
from
Frankfort
inter alia
by accused 3. The cell phone data confirms not only a cell phone call
to accused 3 from Frankfort but also cell phone activity by
accused
3’s phone in Frankfort on the morning of 3 October 2003. Accused
3’s response to this mass of evidence is an unsubstantiated
denial
that the cell phone records related to his cell phone number and an
alibi which was not foreshadowed in cross-examination
of Aspeling and
only partly substantiated by two dubious witnesses.
[171] The
version which he ultimately gave in evidence contains far-reaching
allegations against and involving Aspeling which were
never put to
the latter by his counsel. In my view accused 3’s evidence and that
of his witnesses can be rejected as false beyond
any reasonable doubt
whilst Aspeling’s evidence regarding accused 3’s involvement in
the robbery can be safely accepted in full.
As with accused 1 and 2
an analysis of exactly what charges were proved against accused 3
will be deferred.
ACCUSED NUMBER FOUR
[172] Aspeling’s
evidence implicated accused 4 in each of the three robberies as the
person or one of two persons who would don
a police or traffic
officer’s uniform and drive or be driven in a white motor-vehicle,
usually a
Volkswagen Golf
or a
Polo
equipped with a flashing blue light. Aspeling explained that accused
4 was invariably chosen for this role because drivers would
be more
likely to stop for a white man in police uniform. Using this ploy the
BATSA truck would be stopped on some or other pretext
before the
driver and his assistant were held up at gunpoint. The driver of the
truck robbed at Kinkelbos, Dantu, identified accused
4 in a dock
identification as one of those involved in the robbery. The assistant
to the BATSA driver in the Rawsonville robbery
also made a dock
identification of accused 4. The State led evidence of a V Victor
traveling to and from Port Elizabeth on a coach
on the day before and
of the Kinkelbos robbery. This evidence accorded with Aspeling’s
account that accused 4 had apparently refused
to drive up to Port
Elizabeth in the
Caravelle
for fear of being caught with incriminating equipment and had arrived
separately.
[173] The
State also led the evidence of a Ms Jeanine Harding who had been a
friend and business associate of accused 4 in Cape Town
during 2002
and 2003. She was with him when he was arrested by the police on the
present charges on 5 December 2003. Ms. Harding
gave evidence,
substantiated by a document, that one of accused 4’s cell phone
numbers was
082 776 2314
.
She testified that on the night of his arrest accused 4 told her that
he was in deep trouble but that the police would not catch
him
because he changed his cell phone regularly and did not stay at the
same place but moved around. He also told her that he had
been
involved in armed robberies. She did not want to hear any further
details and he did not provide any. However, he did say later
that he
was involved with 15 or so persons who had previously committed the
R10 million Heidelberg robbery. He added that in what
he had now been
involved, they had used police vehicles and clothes and this was why
the police were so put out. There was an objection
from accused 11’s
counsel to the aforesaid evidence but the evidence was admitted in a
separate ruling.
[174] In
cross-examination accused 4’s counsel admitted the relationship and
friendship between accused 4 and the witness but accused
her of
betraying accused 4 to the police in a sting operation. The witness
denied this and stood up well to cross-examination from
every
quarter. It was noteworthy that the witness’s account of what
accused 4 had told her in the club concerning the trouble in
which he
found himself was not denied or disputed in terms by accused 4’s
counsel.
[175] I
consider the witness’s evidence to be entirely credible, and
unshaken in cross-examination and accept it.
CELL PHONE EVIDENCE
[176] The
second major area of evidence against accused 4 was cell phone
evidence. The State led testimony that the
072
105 7155
number, a number
attributed by the State to accused 4 during the Darling and Kinkelbos
robberies, was found on the phone directory
of accused 3. Similarly
the number was found on the phone directory of the phone seized from
accused 7. Superintendent Mike Barkhuizen
testified that he executed
a search warrant at the premises of a Ms. Yolanda Zeelie, a woman
with whom accused 4 apparently had a
relationship, in Durbanville on
9 October 2003. There he found a traffic summons made out in respect
of a Vernon Noel Victor in which
his cell phone number was given as
082 776 2314
.
Ms. Zeelie also surrendered cell phone billing records addressed to
her in respect of the selfsame cell phone number.
[177] Passenger
manifests relating to the bus trip to and from Port Elizabeth on 1
and 2 October 2003 record the passenger Victor’s
cell phone number
as
072 105 7155
.
Analysis of the
Vodacom
cell phone data in respect of the number
082
776 2314
indicates that the
cell phone was active in the immediate vicinity of the crime scene on
24 June 2003, the day of commission of the
Rawsonville robbery.
Similarly,
Vodacom
cell phone data in respect of the number
072
105 7155
indicates that the
cell phone was active in the immediate vicinity of the crime scene on
12 August 2003, the day of the commission
of the Darling robbery, and
again on 2 October 2003, the day of the commission of the Kinkelbos
robbery.
[178] In
response to this evidence accused 4 chose not to testify and called
only one witness, a Ms. Mariza Potgieter who previously
had a
relationship with accused 4’s brother. She testified that during
2003 she had lived in Bloemfontein and that accused 4 had
stayed with
her between 21 and 26 June and then later for four or five days
around 12 August 2003. These dates coincide with the
Rawsonville and
Darling robberies. In substantiation of these alibi’s, neither of
which were foreshadowed by accused 4’s plea
explanation or in
cross-examination of Aspeling, the witness produced two invoices. The
first purported to support her evidence that
the accused had assisted
her in taking her television set to a Bloemfontein shop for repairs
on 11 August 2003 and fetched it the
next day. The witness
contradicted her evidence in chief when she stated, under
cross-examination, that she was not in the TV repair
shop when the
invoice was issued.
[179] Cross-examination
of the witness and later evidence led by the State revealed the
invoice to be fraudulent. The stamp which
it bore had only been
obtained by the business in question on 20 January 2004, four months
after the invoice was allegedly issued
and stamped. Furthermore, the
original invoice book was produced which showed that the duplicate
page of the invoice was blank whilst
the immediately preceding and
succeeding invoices were dated August 2004, a year after the
television set was allegedly brought in
and the invoice issued
(exhibit “N x 6”). In substantiation of the second part of
accused 4’s alibi the witness handed in an
invoice purporting to
confirm that on the day in question she had accompanied the accused
to purchase clothing at a shop in Bloemfontein.
The invoice, (exhibit
“O x 6”) does not appear to be an original and makes no direct
connection to accused 4. Furthermore, as
the witness conceded, it was
possible to create such an invoice simply using the fonts of a
personal computer. The witness struggled
to explain how she came to
retain these invoices until 2004 when the accused had asked her for
them. She testified that she only
had copies of the invoices because
they had become lost when she had posted the originals to accused 4’s
mother.
[180] The
State presented a powerful
prima
facie
case against accused
4 comprising Aspeling’s evidence implicating him in all the
robberies, cell phone corroboration of his involvement
in each such
robbery, two dock identifications of him as the “policeman”
involved in two of the robberies, the bus coach evidence
of his trip
to and from Port Elizabeth immediately before and after the Kinkelbos
robbery and, finally, Janine Harding’s damning
evidence. Accused
4’s only response was an alibi defence to which he himself was not
prepared to testify. His witness, Ms. Potgieter,
was unimpressive and
at least one of the documents which she put up in substantiation of
the alibi was proved to be false. The other
invoice was of little if
any value. In my view the State case against accused 4 is proved
overwhelmingly and Aspeling’s evidence
implicating accused 4 must
be accepted in full.
ACCUSED NUMBERS 5
AND 9
[181] The
cases in respect of accused 5 and 9 are similar and will be dealt
with together. Aspeling implicated accused 5 and 9 in
all three
robberies. He testified that he first met them at the
Waterfront
Suites
shortly before the
first robbery and last saw them in Johannesburg shortly after the
Kinkelbos robbery when they arrived to claim
their share of the
proceeds. He was only able to identify them however as “Mandoza”
and “Edward” respectively. His evidence
was moreover that he was
never formally introduced to either accused. According to Aspeling’s
evidence their role in the various
robberies seems to have consisted
largely of driving either a maroon or a white
Volkswagen
Caravelle
and lending
general support.
[182] After
his arrest, Aspeling took the police to the house in Observatory
where accused 5 stayed. When he eventually found the
house however
accused 5 was not there. Instead Aspeling identified accused 8 who
was then arrested at the house. On a later occasion
the police showed
him a range of photographs. He recognized accused 9 amongst them.
Aspeling was neither present at nor could he
explain the
circumstances under which accused 5 and 9 were arrested. The State
never placed the relevant photograph before the Court
nor led any
further evidence regarding the identification of accused 5 and 9 or
the circumstances in which they were arrested. No
cell phone was
confiscated from either accused 5 or 9 and no cell phone records were
handed in by the State purporting to be those
of either accused.
[183] Ultimately,
on Aspeling’s own evidence accused 5 and 9 remained rather shadowy
figures in the robberies playing very limited
roles. In the final
result the only evidence implicating them was that of Aspeling. Prior
to the robberies he had not known accused
5 and 9 and he did not
share any accommodation with them in any of the three robberies.
According to Aspeling’s evidence accused
5 and 9 were part of the
Cape Town contingent and therefore he would generally only see them
on the days before and after each robbery.
Looked at as a whole,
Aspeling’s evidence regarding the involvement of accused 5 and 9 is
very limited in detail and unsubstantiated
by any independent
corroborating evidence.
[184] In
these circumstances accused 5 and 9’s failure to testify does not
necessarily attract an adverse inference. In keeping
with the general
approach outlined above to Aspeling’s evidence we are of the view
that it would not be safe to find that the State
has proved beyond
reasonable doubt that accused 5 and 9 were involved in the three
robberies.
ACCUSED NUMBER SIX
[185] Aspeling
implicated accused 6 as being involved in the second and third
robberies and as playing a leading role in the shootout
at Lenasia.
When accused 6 was arrested on the night of 9 October 2003 the police
confiscated a cell phone from him. Mentoor testified
that accused 6
was well known to him and that his cell phone number was
072
373 1856
. This number was
downloaded by Detective-Sergeant Speed from Mentoor’s cell phone
directory. The same number appeared in a phone
directory attributed
to accused 3’s cell phone directory under the name “Gary Bad Boy”
as well as the phone directory of a
number attributed to accused 7
under the name “Gary the Dru”. Analysis of the cell phone data
relating to the aforesaid number
indicated that the cell phone was
active in the immediate vicinity of the BATSA depot in Montague
Gardens and on the crime scene
on 12 August 2003 – the day of the
commission of the Darling robbery.
[186] The
cell phone seized from the house of accused 6 was later identified by
the defence witness Norbert Pong as a cellular phone
with the number
083 212 2047
,
one used by him during his term of employment at
MTN
.
Analysis of the data relating to that phone indicated that it was
active in the immediate vicinity of the crime scene in the Eastern
Cape on 2 October 2003, the day of the commission of the robbery in
Kinkelbos. Accused 6 testified in his own defence and called
two
witnesses, Messrs. Sheilan Julies and Norbert Pong.
[187] Accused
6 denied knowing Aspeling or playing any part in the robbery at
Darling and Kinkelbos. He testified however that he
knew accused 1,
2, 3, 7 and 10 from long before the case and was good friends with
accused 3 and 7. He testified that in the week
of the Darling robbery
he was at his place of employment in Alberton. He called no witness
to substantiate this allegation, however.
He testified that on 7
August 2003 he was requested by his friend, Mr. Clayton Paulsen, to
accompany the latter in transporting two
women to Durban by motor
vehicle on the Friday and returning the following morning. On the
Monday morning he again traveled to Durban
to collect the women and
returned on the Tuesday. Clayton Paulsen was later called as a
witness by accused 7 but neither of the women
referred to in this
trip to Durban testified.
[188] As
far as the Kinkelbos robbery was concerned accused 6 testified that
he was in Johannesburg throughout the period and that,
on the day in
question, in yet another striking coincidence, he had been at the
Ennerdale police station with one Sheilian Julies
to whom he sold the
front section of a
Jetta
motor vehicle. At the police station an affidavit had been attested
to recording this transaction. The affidavit was handed up as
exhibit
“M x 6”.
[189] The
accused admitted being part of the shooting incident in Lenasia South
on 3 October 2003 as described by Aspeling. However,
he adopted the
version given by accused 2 and 3 in which Aspeling, together with a
team of four unknown black men was the aggressor.
According to
accused 6 he himself had not used the firearm at the scene although
Clayton Paulsen had done so.
[190] He
testified that Aspeling was falsely implicating him in the robberies
because he and others had meted out “mob justice”
to Aspeling’s
friend, one Humphrey. Further, he testified, Aspeling had tried to
shoot him in the Lenasia South shooting incident
because Aspeling
regarded him as a ”nuisance”. Regarding Norbert Pong’s cell
phone, accused 6 denied ever using it and explained
his possession
thereof by stating that he had found it in his (accused 6’s)
vehicle after one “Easy”, Norbert Pong’s friend,
had worked on
the vehicle. Accused 6’s credibility was dealt a fatal blow in
cross-examination when he admitted that he had been
required to
attend at the Johannesburg magistrates’ court on 1 October 2003 as
an accused. It was common cause that accused 6 had
not attended the
court proceedings on the day in question. According to him he was in
town, however, and his absence was solely as
a result of transport
problems which he had experienced. On the day he had telephoned his
attorney, a Mr. Clarry Botha, to advise
of this problem.
[191] On
behalf of the State, however, advocate Booysen handed up the original
charge sheet and notes of the magistrate in the matter.
The
magistrate’s notes (exhibit “P x 6”), insofar as they are
relevant, made on 1 October 2003, read as follows:
“
Beskuldigde
om 09:19 van hof afwesig. Mnr. C Botha: ‘Beskuldigde het my
gisteraand gebel. Sy werk het hom Kaap toe gestuur. Hy is
nie betaal
nie en sit gestrand. Hy sal moontlik vandag betaal word en dan
dadelik deurkom. Vra dat lasbrief oorgehou word. Handig
faks in,
bewysstuk A.’”
The
attached exhibit, an original hand-written fax dispatched from the
Port Elizabeth post office on 1 October 2003 at 8:38 am, reads
as
follows:
“
ATT: MR BOTHA
To whom it may
concern:
I,
Mr. J van Heerden am currently employing Mr. Gary Williams. We are
stationed in Eastern Cape sub-contracting for Day Glow. He had
put it
to my attention that he had to attend court on 1/10/2003. We are
expieriancing (
sic
)
a cash problem which is the bank’s fault. All employees’ money
was supposed to have been paid in on 29 September 2003 and no
money
was received. Due to the financial setback he could not pay for the
bus. My contact number is 072 1800 935.”
[192] Although
accused 6 admitted that Mr. Clarry Botha had been his attorney and
had represented him on the day in question, he denied
any knowledge
of the fax put up by Mr. Botha justifying his non-appearance in court
on the day in question. Accused 6 did not call
Mr. Botha to clarify
the matter and the inference is unavoidable that accused 6 lied about
his whereabouts on 1 October 2003 and
that he was indeed not only in
the Eastern Cape but in Port Elizabeth from where the fax was
dispatched. The reference in the fax
to a Mr. J van Heerden, accused
3’s name, furthermore, is instructive since on Aspeling’s
evidence accused 3 was the leading
figure in the Kinkelbos robbery.
[193] Accused
6, although found in possession of Norbert Pong’s phone, denied
using it in the Eastern Cape. According to him he
found it in his car
and had it in his possession only for a short period. It was put to
accused 6, however, that he had furnished
the cell phone number of
Norbert Pong’s cell phone to the police who had recorded it on his
warning statement taken shortly after
his arrest (exhibit “C x 7”).
When asked to explain this accused 6 stated that he had furnished his
mother’s landline number
and that a policeman must have deviously
filled in Pong’s cell phone number afterwards. Not only was this
unsubstantiated allegation
farfetched, it is not borne out by the
warning statement which records Pong’s cell phone number in the
place on the form for the
accused’s telephone number with the
landline number added above.
[194] Norbert
Pong testified on behalf of accused 6. He too claimed that his phone
must have been stolen by one of the persons who
occupied his house, a
certain “Easy”. He was extremely vague about the allegations,
however, and regarding when, if ever, he
had reported it to the
police or his employer,
MTN
,
who had issued him the phone as a perk. In cross-examination it
emerged that Pong had been an extremely elusive witness. He had
been
sought for a long time by the police who had wished to take a
statement from him explaining the use of his cell phone in the
Kinkelbos robbery. A sworn statement made by Pong to the police in
August 2005 was put to him but he claimed that pressure had been
brought to bear on him to sign the statement which he had merely
“browsed”. In that statement (exhibit “Y x 6”), Pong stated
unequivocally that he had lent his phone to accused 6, his friend, on
a regular basis during 2003 with the number being
083
212 2047
.
His introductory paragraph to the statement makes it quite clear that
Pong was advised that the police were investigating a truck
hijacking
in the Eastern Cape in which his phone was allegedly involved. His
account of his phone having been stolen by “Easy”
appears nowhere
in his statement to the police and, by the time he testified, the
equally elusive Easy had vanished. Pong was an
evasive witness who
clearly found himself in a tight corner in his efforts to explain how
his phone came to be used by accused 6.
He was unable to dispute that
his
MTN
sim card and cell phone were found in accused 6’s possession on his
arrest on 9 October 2003.
[195] The
second witness called by accused 6 was Sheilan Julies who was called
to confirm that on 2 October 2003 he was present when
accused 6
deposed to a sworn affidavit at the Ennerdale police station
concerning the sale of a vehicle to Julies. The sworn affidavit
(exhibit “M x 6”), is another affidavit in the series
commissioned at the Ennerdale police station and relied on by various
accused.
Julies had no independent recollection, other than the
affidavit which he claimed to have found in his records long after
the incident,
of the date on which the affidavit was attested to. He
did not dispute that the hand-written date on the original affidavit
appeared
to have been altered from another year to 2003 and that the
stamp date itself casts doubt as to whether it related to 2 October
or
not. That was not the only apparent alteration in the document
since accused 6’s identity number was also altered in at least
three
places casting yet further doubt on the authenticity of the
document.
[196] The State called a handwriting
expert, Superintendent Marco Van der Hammen, to testify regarding his
examination of and conclusions
regarding the sworn affidavit which
accused 6 claims to have signed. His conclusions were that the
evidence strongly suggested that
the deponent’s (accused 6’s)
signature was a forged signature.
[197] In
evidence in chief accused 6 claimed that three cell phones had been
seized from his premises upon his arrest, his mother’s,
Pong’s
and his own.
In
cross-examination, when it was put to him that the police had only
seized one phone, accused 6 then claimed that two phones had
been
seized from his premises and neither had been placed in a forensic
bag. Inspector Ngobeni testified that he seized one phone
and placed
it in a forensic bag and sealed it in front of the accused. Accused 6
was then asked why it was never put to Ngobeni that
two or three
phones had been taken and not sealed in a forensic bag. Accused 6
stated that he could give no explanation for this
omission but stated
that he had furnished these details to his counsel.
[198] Accused 6 repeatedly claimed in
his evidence that he was a victim of a conspiracy, along with other
accused, at the hands of
Mentoor, Aspeling, Aspeling’s “police
friends”, various police officials and BATSA officials. He stated
that he had instructed
his counsel that all these persons were part
of a plot against him but did not know why his counsel had not put
this to those witnesses.
[199] The accused presented as an
evasive witness who frequently avoided answering direct questions. It
was notable, however, that
as and when the prosecutor began to back
him into a corner on a particular topic, he would suddenly anticipate
the prosecutor’s
line of questioning and supply a flurry of
exculpatory information. Overall, accused 6, made a poor impression
as a witness and,
as I have said, his credibility was dealt a fatal
blow when he was trapped in the lies he had told about his
non-appearance in court
on 1 October 2003. Another witness who gave
evidence on behalf of accused 6 was Mr. Clayton Paulsen. He testified
along the lines
of the account given by accused 2 and 3 in relation
to the Lenasia shootout incident. However, it was his evidence that
he had been
armed and fired five or six shots at the scene. In his
evidence in chief he stated that he had seen Aspeling shooting at the
Lenasia
shootout but under cross-examination he stated that he had
not seen this.
[200] Paulsen testified that accused 6
had indeed accompanied him to and from Durban transporting two women
during August 2003 at
around the time of the Rawsonville robbery. The
witness was very vague about dates and times, however, and
furthermore contradicted
accused 6’s version of the details in
various respects. For example, he stated that he had not originally
contacted accused 6 at
his place of work because accused 6 had not
been employed at the time. To the contrary, accused 6’s evidence
was that he had been
in permanent employment at that time and that he
had been contacted there by Paulsen to invite him to come along on
the trip. Overall,
Paulsen’s evidence was unsatisfactory. He was,
moreover, close friends with accused 6 and was well-known to several
of the other
accused. In fact he was arrested at accused 7’s
residence at the same time as accused 7 and briefly held before being
released.
It was clear that he was a compatriot of all the accused
who hailed from Ennerdale.
[201] In summary the State case
against accused 6 comprised Aspeling’s evidence implicating him in
two robberies and the shooting
incident as well as cell phone data
placing his cell phone at the scene of the Darling robbery and the
borrowed cell phone of his
friend, Norbert Pong, at the scene of the
Kinkelbos robbery. Accused 6 was constrained to admit that he was
involved in the shooting
incident and furnished the improbable
explanation that Aspeling had attacked him and his colleagues for no
good reason. He denied,
unconvincingly, that the first cell phone was
his. He admitted that he had been found in possession of Norbert
Pong’s cell phone
furnishing an unlikely and largely
unsubstantiated account of how it accidentally came to be in
possession. He claimed nonetheless
that he had never used the phone
in the Eastern Cape. Accused 6’s denial that he was in the Eastern
Cape at the time of the Kinkelbos
robbery was completely undermined
by his false evidence regarding his non-appearance in court on 1
October 2003.
[202] Accused 6 was a poor witness and
the evidence which he brought to support his alibi was exposed as
being founded on a suspect
affidavit attested at the Ennerdale police
station, the date of which had apparently been tampered with. The
remainder of his alibi
was supported by the evidence of Clayton
Paulsen whose evidence was similarly unsatisfactory and who was a
close friend of several
of the accused. In the circumstances I am
satisfied that accused 6’s evidence can be rejected as false beyond
any reasonable doubt.
I am satisfied, furthermore, that Aspeling’s
evidence implicating accused 6, corroborated as it is by independent
evidence of accused
6’s presence at both the Darling and Kinkelbos
robberies, can be accepted in full.
ACCUSED NUMBER SEVEN
[203] Accused 7 was implicated in the
Darling and Kinkelbos robberies by Aspeling who testified that he had
not taken part in the
first robbery. Aspeling also put accused 7 on
the scene of the Lenasia shooting incident. The Kinkelbos BATSA
driver, Dantu, identified
accused 7 without hesitation at a full
scale identification parade. In his evidence Dantu, an excellent
witness, identified accused
7 as one of two men standing around a
white
BMW
at the scene of the robbery. Accused 7 approached him and challenged
him when he observed him pressing what was in fact a panic button.
At
this stage Dantu’s driver’s window was all the way down and
accused 7’s face was about 50cm from him.
[204] Other evidence implicating
accused 7 was the issuing to him of an “MVG card” at the Grand
West Casino in Goodwood, Cape
Town on or about 10 August 2003, two
days before the Darling robbery as well as the discovery of the
First
National Bank
deposit slip
indicating a deposit by one “Llewellyn Smith” of a cash amount of
R47 000,00 to one Isgak Isaacs into
FNB
Grassy Park branch on
15 August 2003, a few days after the Darling robbery.
CELL PHONE EVIDENCE
[205] When accused 7 was arrested the
police seized two cell phones from his premises as well as two
vehicles, namely, a white
Volkswagen
Polo
and a white
BMW
.
Accused 7 told the arresting officer that one of the phones was his
and the other belonged to a girlfriend. On one of the phones
seized
from accused 7, having the cell phone number
082
220 7718
, cell phone
numbers later attributed to accused 1, 2, 3, 4 and 8 as well as
Norbert Pong, Alfred Mentoor and Aspeling were found.
Upon further
examination by the police the phone was found to contain two sim
cards.
[206] Ms Du Plessis of
MTN
later gave evidence that the handset had been used in combination
with a “Telematrix” sim card having cell phone number
083
971 4426
. The relevant cell
phone data indicated that the phone had been active around the crime
scene of the Darling robbery at that time.
[207] On accused 7’s other phone,
with cellular phone number
072
296 1979
, a number
attributed to accused 6 was found under the name “Gary the Dru”.
Analysis of the cell phone data relating to the “Telematrix”
card, number
083 971 4426
,
revealed that the cell
phone had been active in the immediate vicinity of the BATSA depot in
Montague Gardens and the crime scene
on 12 August 2003, the date of
commission of the Darling robbery.
[208] Other evidence linking accused 7
to the robbery potentially was the discovery of a white
BMW
and a white
Volkswagen Polo
on his premises. These vehicles are the subjects of count 13 and 9
and will be discussed separately.
[209] Accused 7 testified on his own
behalf and called witnesses. He admitted that he was involved in the
Lenasia shooting incident
but denied that he was either in the
Western Cape or Eastern Cape at the time of the various robberies or
in any way implicated in
the Darling or Kinkelbos robberies. Accused
7 testified that during the period around 12 August 2003 he was
working out of a taxi
rank and on the day of the Darling robbery he
had visited someone in prison. With regard to the day of the
Kinkelbos robbery he stated
that he had attended a court case in
Johannesburg and thereafter was involved in a motorvehicle accident
in Ennerdale. As a result
of this accident he signed an affidavit,
commissioned that day at Ennerdale police station, acknowledging his
liability for the other
party’s damages. Accused 7 produced the
affidavit and called the policeman who allegedly commissioned it, one
Mr. Clinton Fritz,
who testified that on that same day accused 3 had
taken him to Lenasia to buy spares for his vehicle.
[210] Regarding the Lenasia South
shooting incident accused 7 told a tale similar to those of previous
accused, namely that Aspeling
was the aggressor together with several
unknown black colleagues and who later removed the wounded accused 2
in their white
Golf
.
Accused 7 denied any knowledge of the
FNB
deposit slip.
[211] He denied involvement with any
other cell phone number other than
082
220 7718
but produced no
evidence to substantiate that this was his number. He alleged that
the evidence against him formed part of a conspiracy
by the
investigating officer Jonker which conspiracy included Aspeling,
Vodacom
,
MTN
,
BATSA
,
the workers from the
Grand
West Casino
, Ms Hilda du
Plessis from
MTN
,
Cottle and Detective-Sergeant Speed. He denied being at
Grand
West Casino
on the date in
question and applying for an “MVG card”.
[212] The SAPS handwriting expert, van
der Hammen, also examined the sworn affidavit allegedly attested to
by accused 7 on 20 October
2003 at Ennerdale police station and which
was used by accused 7 to substantiate his alibi. Van der Hammen
concluded that although
there was some evidence suggesting the
deponent’s signature was genuine he could not determine with any
degree of certainty that
this was the case. It is notable that
although both the affidavits examined by the expert purported to have
been signed at the Ennerdale
police station on the same day, namely,
2 October 2003, the date of the Kinkelbos robbery they bear different
police stamps, bearing
the words “Administration Management
Ennerdale” and the other “Client Service Centre Ennerdale”.
[213] The affidavit handed up by
accused 7 was another in the series of affidavits bearing Ennerdale
police station stamps whose content
was unrelated to any criminal
matter but serving the purpose of partly corroborating the alibis
raised by one or other accused. This
particular affidavit contains
the innocuous information that accused 7 bumped into a certain
vehicle on that day and undertook to
fix all the damages caused. Mr.
Clinton Fritz was called to testify that he was a police reservist
working at Ennerdale police station
on the day in question. In chief
he stated that he had attested the affidavit as the commissioner of
oaths and had written it out
in his handwriting.
[214] In cross-examination he
contradicted himself saying that he did not write out this statement.
His evidence was that he had no
more than a vague recollection of the
incident. He did not know accused 7 but was aware that he worked in
the taxi business although
accused 7 knew that he worked at the
Ennerdale police station. He made no note of the incident in the
charge office’s incident
book and took no steps to establish
whether the information contained in the affidavit was correct or
not. He testified that any
member of the public could attend at the
Ennerdale police station to have their private agreements stamped and
attested to by the
police in affidavit form. He could give no
explanation as to why official police documents such as sworn
affidavit forms were used
for the private affairs of members of the
public.
[215] The State’s handwriting
expert, Van der Hammen, later pointed out various unsatisfactory
features of the stamps used on the
affidavit. Fritz did not create a
good impression as a witness, his evidence being vague and at times
contradictory. It is, moreover,
difficult to conceive how he or any
other policeman for that matter could recall, years after the event,
such a trifling incident
as commissioning an innocuous affidavit.
[216] When the State was granted
leave to re-open its case it called a Mr. Raymond Stewart as a
witness. He testified that from 2000
– 2006 he had worked as an
unpaid reservist at the Ennerdale police station. He was unemployed
and a resident of Ennerdale. He
stated that he had previously been
called by accused 6’s legal representative as a witness but upon
arrival at court had been told
that his evidence was no longer
necessary. In evidence in chief he testified that he had personally
completed all the handwritten
material on the two sworn affidavits
allegedly attested at Ennerdale police station and put up in
substantiation of accused 6 and
7’s alibi for 2 October 2003. He
stated also that he would have made the various changes to figures
and dates which appeared in
the affidavit and not accused 6. He
testified that he had attested only to accused 6’s affidavit and
not accused 7 even though
this attesting would only have taken a few
seconds. According to him he did not attest to the second affidavit
because he had gone
to the toilet or to the shop. This evidence did
not accord with that of accused 7’s witness, Clinton Fritz.
[217] The witness stated that in both
affidavits (exhibits “M x 6” and “W x 6”) the same charge
office date stamp was used.
The sloping cipher or mark before the “2”
in the first affidavit in the date stamp, contrasted with the “0”
before the “2”
in the second Statement was as a result of the
fact that the stamp was defective and sometimes fell open. Stewart
left an unfavourable
impression as a witness and was another fulltime
or reservist police official who claimed to have played a role in
affidavits, executed
on poor copies of an original SAPS affidavit
form, concerning matters which do not appear to fall within the
province of a police
station charge office. In each case the witness
claimed to have remembered the incident in some detail despite the
trivial nature
of his involvement in the execution of the affidavit
which in each case coincidentally purports to support an accused’s
alibi.
[218] Accused 7 called Ms Maxine
Khumalo to testify regarding his alleged attendance at the funeral of
a family member on 9 August
2003. It is worth noting that accused 7
elected not to disclose this alibi during the plea proceedings and it
was mentioned for the
first time during Aspeling’s evidence. Ms
Khumalo testified that accused 7 was her cousin’s son who came to
Sabie, to where the
witness moved in 1999, to visit his granny. The
latter died in August 2003 in a residential area near Sabie and at
her funeral on
9 August 2003 the witness states she saw accused 7.
She added that “she thinks” that accused 7 stayed over for two
days. The
witness was an elderly woman, some 68 years of age, and she
testified that there had been hundreds of people at the funeral in
question.
[219] Accused 7 himself left an
extremely poor impression as a witness. He was argumentative and
longwinded in the extreme, taking
every opportunity to argue his case
rather than supply factual answers. The accused made repeated claims
of a conspiracy against
him involving a wide range of State witnesses
and the various agencies involved in this matter. Ultimately this was
his answer when
he was confronted with most evidence pointing to his
direct involvement in the robberies or his presence in the Eastern
Cape. The
accused could offer no substantive explanation for the
evidence indicating that he had applied for an “MVG card” at the
Grand West Casino
a day or two before the Darling robbery. That evidence, the clear
identification of him by Dantu, his apparent involvement in the
deposit of a large sum of money to the credit of Isgak Isaacs as well
as the linking of the “Telematrix” sim card to his phone
which in
turn was active on the scene of the Darling robbery all served as
corroboration for the evidence of Aspeling implicating
him in both
the Darling and Kinkelbos robberies. Accused 7’s involvement in the
Lenasia South shooting incident was yet further
evidence that he was
part of the group which committed the Kinkelbos robbery only to be
hoodwinked by accused 1’s group and hence
the confrontation in
Lenasia South.
[220] The accused’s alibi defence
rests upon the somewhat vague evidence of his family member relating
to a funeral and the dubious
affidavit recording his involvement in a
motor accident on the day of the Kinkelbos robbery, coincidentally
attested at the Ennerdale
police station.
[221] I can find no reason to reject
the evidence of Aspeling implicating accused 7 in the two robberies.
There is independent corroboration
for his evidence in a number of
forms. Accused 7’s alibi evidence does not stand up to close
scrutiny, in my view, and in the circumstances
I am satisfied that
the State has proved the involvement of accused 7 in the Darling and
Kinkelbos robberies beyond any reasonable
doubt and that his alibi
evidence can be rejected as not reasonably possibly true.
ACCUSED NUMBER EIGHT
[222] Aspeling implicated accused 8,
James Francis Ngarinoma, in all three of the robberies. Accused 8 was
one of those whom he met
at the
Waterfront
Suites
shortly prior to the
Rawsonville robbery. He had not met him before. In his evidence in
chief he did not specify what role accused
8 played in the
Rawsonville robbery but did testify that he was present at accused
5’s house after the robbery where they spent
several hours
together. When the proceeds of the first robbery became available
Aspeling heard accused 3 say that it would be arranged
that the Cape
Town contingent, including accused 8, would receive their money
there.
[223] In regard to the second robbery,
Aspeling’s evidence was that accused 8 climbed into his truck at
Montague Gardens on the
morning of the robbery and directed him to
the site of the robbery. When the truck was loaded up with the stolen
cigarettes accused
8 drove back with Aspeling to the
Waterfront
Suites
.
[224] With regard to the Kinkelbos
robbery, Aspeling came across accused 8 in Port Elizabeth on the
night beforehand together with
other members of the Cape Town
contingent. He travelled up in a white
Volkswagen
Caravelle
. The Cape Town
contingent stayed at other accommodation that night. When Aspeling
arrived at the scene of the robbery accused 8 was
amongst those who
were in the BATSA truck. After the Lenasia South shooting incident
the Cape Town contingent arrived in Johannesburg,
but accused 8 was
not amongst them. He testified that accused 8 also received a share
of the Kinkelbos robbery’s proceeds but he
did not know to whom it
was given in the first place.
[225] Later in cross-examination
Aspeling was asked about the amount of time he had spent in the
company of accused 5, 8 and 9. He
testified that after the first
robbery he had spent approximately four hours with them, in the house
in Observatory. Aspeling pointed
out that on the occasion of the
second robbery accused 8 was with him in the truck going to and from
the scene of the robbery. On
that occasion they spent approximately
two hours together. On the occasion of the third robbery accused 8
and 9 had travelled together
with him in the truck from the hotel in
Port Elizabeth to a filling station where they waited for further
instructions. Again on
that occasion they had been in each other’s
presence for about two hours.
[226] Aspeling testified that after
his arrest he had eventually led the police to the house in Oak
Street, Observatory. He showed
them where accused 5 stayed. At the
house two men had come to the front door, one of them being accused
8. He had immediately recognised
accused 8 and, pursuant to
Aspeling’s identification, accused 8 had there and then been
arrested by the police. Aspeling had not
recognised the other man who
was consequently not arrested.
[227] The State proved a police
profile of accused 8 prepared by the investigating officer in which
his residential address was given
as 4 Oak Street, Observatory and
one of his telephone numbers as
083
364 3235
. Some weeks before
preparing this profile, but after his arrest, the police took a
warning statement from accused 8 on which he furnished
the same
address and telephone number but declared that he did not wish to
make a statement. In a phone directory linked to accused
3 the
selfsame number was found in the directory under the name “James”.
In a phone directory found in a phone linked to accused
7 the
aforesaid number was again found with the name “J” and “James
Cape”. Analysis of the cell phone data obtained from
MTN
relating to this number indicated that the cell phone was active in
the immediate vicinity of the crime scene on 12 August 2003,
the day
of the commission of the Darling robbery, and again on 2 October
2003, the day of the commission of the Kinkelbos robbery.
[228] In response to this evidence
accused 8 chose not to testify nor did he call any witnesses.
However, on his behalf and by agreement
between the State and his
counsel, a document was handed up (exhibit “A x 7”) namely, a
charge sheet in the Wynberg magistrates’
court in which accused 8
was the first accused. The agreement between the State and defence
counsel was to the effect that the charge
sheet, a J 15-form,
together with the accompanying magistrate’s notes, was a true copy
of the original, although the State did
not admit that the James
Francis Ngarinoma who, according to the document, appeared in court
on 23 June 2003, was in fact the accused.
The charge sheet and the
notes appear to indicate that the accused was arrested at 23h00 on 21
June 2003 and was granted bail of
R1000,00 on his first appearance
before court on 23 June 2003.
[229] Accused 8’s counsel, Mr.
Petersen, argued that the State had failed to prove any charge
against the accused and concentrated
his attack upon what he
submitted was the inadequate dock identification of the accused by
Aspeling. He also criticized what he submitted
was Aspeling’s
contradictory and unsatisfactory evidence regarding the involvement
of accused 8 in the first robbery.
[230] Whilst it is correct that
accused 8 was not identified by Aspeling pursuant to a formal
identification parade, in my view, Aspeling’s
identification of the
accused can safely be relied upon. According to his evidence he spent
many hours in close contact with accused
8 on several different
occasions and conversed with him at some length. A month or so after
the last robbery he led the police to
the Oak Street house where he
immediately identified accused 8. As I have said the latter was
accompanied by another black man whom
Aspeling did not claim to
recognise and who was consequently not arrested.
[231] Aspeling initially testified
that accused 8 was part of the group which made their way to BATSA’s
Montague Gardens depot early
on the morning of 23 June 2003. It
appears that on that day the plan was to rob the BATSA truck but that
it was aborted mid-morning.
When Aspeling was challenged in
cross-examination that accused 8, by reason of being in custody at
the time, could not have been
present, Aspeling conceded that he
could well have been mistaken in stating that accused 8 was present
on the morning of 23 June
2003. The balance of Aspeling’s testimony
regarding accused 8’s involvement in the Rawsonville robbery was
rather vague. It was
only in cross-examination that he appeared to
firmly place accused 8 at the scene of the robbery. Furthermore,
although there is
cell phone evidence placing accused 8 at the scene
of the Darling and Kinkelbos robberies such evidence is lacking for
the Rawsonville
robbery. Notwithstanding that accused 8 did not
testify it appears to us to be reasonably possible that Aspeling was
mistaken as
to the involvement of accused 8 in the Rawsonville
robbery as a whole and he is therefor entitled to the benefit of the
doubt on
the counts relating to this robbery.
[232] The same factors do not apply
however to the second and third robbery where Aspeling’s evidence
clearly implicated accused
8 which evidence was corroborated by
evidence placing accused 8’s cell phone at the crime scenes. In
this regard accused 8’s
counsel argued that the only evidence
linking the accused to the cell phone number in question was
improperly obtained from him through
the warning statement. In the
first place the submission is not factually correct since the phone
directories of both accused 3 and
7 contained the same phone number
identified as belonging to ”James” and “James Cape”. No other
James appears amongst the
accused or was ever mentioned by any
witness in evidence. In support of his argument that the accused’s
cell phone number had been
improperly obtained from him, Mr. Petersen
contended that the police knew full well the importance of cell phone
records and should
have first warned accused 8 that giving his cell
phone number could lead to incriminating evidence being found. He
argued, furthermore,
that the accused was not informed of his rights
prior to making the warning statement. However accused 8 gave no
evidence about what
warning, if any, he was given prior to giving the
personal information which was included in the warning statement. The
statement
itself records that he was warned of his right to remain
silent and that anything he said might be used in evidence against
him in
a court of law; further that he had the right to legal
representation and that he was not obliged to make a statement.
[233] There is no evidence that the
police duped accused 8 into furnishing his cell phone number and I am
not prepared to draw this
inference on the basis of speculation. A
suspect is entitled, no doubt, to refuse to give the police such
basic information as his
name and address. In certain circumstances
even such basic information could incriminate a suspect. It does not
follow, in my view,
that even before requesting a suspect for even
such basic information, the police must, in every instance warn a
suspect that such
information might be incriminating. Every case has
to be determined on its own facts. In the present case accused 8 had
been arrested
pursuant to a direct identification of him by Aspeling
and there is no evidence to suggest that at that stage the police
apprehended
that their case against accused 8 might stand or fall, or
even be significantly enhanced, by cell phone evidence and that he
was
duped into providing his cell phone number.
[234] In my view, given the paucity of
the evidence in respect of the first robbery, the accused’s failure
to testify does not necessarily
lead to an adverse inference against
him. However, Aspeling’s clear evidence regarding accused 8’s
involvement in the second
and third robberies, corroborated as it was
by the evidence placing accused 8’s cell phone on the scene of
those robberies and
being active thereat, called for a response from
the accused. In the absence of any countervailing evidence from him,
the State’s
prima facie
case was immeasurably strengthened. I am satisfied that the State
proved accused 8’s involvement in the Darling and Kinkelbos
robberies
beyond any reasonable doubt.
ACCUSED NUMBER TEN
[235] Aspeling implicated accused 10
in Darling robbery. He testified that accused 10 was not involved in
the first robbery and that
his involvement in the last robbery was
limited to meeting accused 1 and 2 at the Kroonvaal toll plaza where
accused 1 changed over
to accused 10’s car and was driven away by
accused 10. At the end of the State case accused 10 was discharged on
the counts relating
to the Kinkelbos robbery.
[236] The State was unable to produce
any further evidence implicating accused 10. Accused 10 testified on
his own behalf but called
no witnesses. He denied any involvement in
the Darling robbery. He testified that he knew accused 1 and 2 well
and that he was acquainted
with accused 3, 6 and 7. He raised an
alibi defence stating that on 11 August 2003 he had taken his father
to a doctor at Lenmed
Clinic in Ennerdale but advised that the doctor
was not prepared to testify and that he did not intend to call his
father as a witness.
[237] He testified that there was bad
blood between him and Aspeling over certain Vodacom recharge vouchers
which Aspeling’s son,
Clayton, had stolen from his father and which
he and Clayton had sold to a Pakistani person. Aspeling testified
that there were dealings
between him, his son and accused 10
regarding such recharge vouchers but gave a different version to the
effect that he had refused
to purchase such vouchers from accused 10
and his colleagues. Accused 10’s counsel objected to a certain line
of questioning of
his client on the basis that he had not been
allowed to play a full role in the trials-within-a-trial. Although
accused 10’s counsel
had, on a good many occasions, questioned
witnesses within the trials-within-a-trial, there were occasions when
the State objected
to his cross-examination on the basis that he had
no interest therein. Accordingly, in a separate and substantive
ruling, I ruled
that the State could not pursue a line of questioning
arising out of evidence aired or obtained as a result of the
trial-within-a-trial.
[238] Furthermore there was no
agreement from accused 10’s legal representative that the contents
of the trial-within-a-trial could
be treated as evidence within the
trial as a whole. That part of the hearing then is hermetically
sealed from the balance of the
evidence against accused 10 in the
main trial. The ruling was, moreover, held to be applicable to
accused 11 as well since the same
factors applied to him.
[239] Although there were various
discrepancies between the the evidence given by accused 10 and the
versions put on his behalf to
Aspeling, in my view it cannot be said
that accused 10 fared so poorly in cross-examination that he was
revealed as a mendacious
witness. Although he was clearly implicated
by Aspeling in the Darling robbery, there was no evidence
corroborating that of Aspeling’s
in any way.
[240] In the circumstances I consider
that it would not be safe to convict accused 10 solely on the basis
of Aspeling’s uncorroborated
evidence and given that he was not
exposed as having given any clearly false evidence. He is therefore
given the benefit of the doubt
and acquitted on the balance of the
charges against him.
ACCUSED NUMBER ELEVEN
[241] Accused 11 was implicated by
Aspeling as the purchaser of the consignments of cigarettes stolen in
the Rawsonville, Darling
and Kinkelbos robberies. Aspeling testified
that, after the cigarette boxes were counted at accused 1’s house
on 25 June 2003 he
drove the truck containing the cigarettes,
following accused 2 and 3 in a gold
Golf
,
to accused 11’s business premises in Lenasia. There he waited for
the security guard to open the gate and drove down a road to
the end
of the building complex where he was instructed by one of accused
11’s workers to reverse the truck into a yard closed
with precast
walling and assisted the workers to offload the cigarettes onto the
pallets. At the time he did not know accused 11
or his name but
accused 2 and 11 emerged and the former, who was dressed in
traditional Muslim clothing, said to the latter: “
Bra
Achie, ek nodig die parcel
”.
Thereafter accused 11 handed R10 000,00 in cash to accused 2 who
later gave it to Aspeling. This amount was the exact amount
owing to
Bera’s Transport
for the balance of the hire of the vehicle and Aspeling used it when
he returned the truck and paid the sum of money over to
Bera’s
Transport
.
[242] On the day after the Darling
robbery and again after counting the boxes of cigarettes at accused
1’s house, Aspeling again
drove the consignment to accused 11’s
business premises following accused 2. On this occasion he reversed
into the warehouse around
midday where he briefly saw accused 11 who
told his employees to help Aspeling and accused 2 to offload the
cigarettes from the truck
and pack them with the boxes with mixed
contents to one side. Accused 2 went back to accused 11 to collect
the balance owing on the
hired truck in the amount of R6 000,00 and
handed it to Aspeling.
[243] After the Kinkelbos robbery and
his subsequent hijacking, Aspeling assisted accused 2 to unload the
consignment of cigarettes
into a garage in Comaro. Aspeling overheard
accused 2 on his phone saying: “
Bra
Achie, as die trok loop sal ek jou bel, dan moet jy jou trok stuur om
die cargo te kom oplaai
”.
When Aspeling returned later in the day the cigarettes were gone from
the garage. He, accused 3, 6, 7 Grant and Otto then drove
to accused
11’s place of business and confronted him saying they wanted the
cigarettes that accused 2 had delivered to him or their
money.
Accused 11 denied that he received any goods from accused 2 but
stated that the latter had phoned him that morning to tell
him that
he had a “parcel” for him but would deliver it during the course
of the day. Accused 11 then phoned accused 2 in their
presence and
told him that Aspeling and his colleagues were there. Accused 11 then
handed his phone to Aspeling to speak to accused
2 in the same call
and an arrangement was made for them to meet at accused 1’s house.
Aspeling and the others left accused 11’s
premises and on their way
to accused 1’s house the shootout in Lenasia South occurred when
accused 1 and 2 arrived in their car
together with Denzil Boyles and
a confrontation took place.
[244] In the negotiations that
followed Aspeling and his colleagues were told, when they were
impatiently demanding their share of
the proceeds, that accused 1 and
2 were waiting on accused 11 to come up with the money.
[245] In answer to the Court’s
questions Aspeling testified that he had not spoken to accused 11
directly on the first two occasions
and on the third occasion accused
11 was talking mainly to accused 6 and 7. On the occasion of the
first offloading accused 11 had
been in his presence for
approximately 25 minutes. On the second occasion accused 11 had been
in his presence for about 5 of the
20 minutes. On the third occasion
accused 11 had been in his presence, and that of his colleagues, for
about half an hour.
[246] Accused 11 testified in his own
defence and called one witness. He denied knowing or meeting
Aspeling. He denied, furthermore
even, knowing any of his fellow
accused or that he ever received or purchased cigarettes from them.
Accused 11 testified that his
business, Lenasia Nursery, is in fact a
closed corporation of which he was the only member. He stated that it
was a nursery which
sold plants, a cigarette wholesaler and a
supermarket. He handed in a photograph, exhibit “YYY(2)” showing
the entry to the business
which would appear to consist of two
sliding steel gates, one giving access to the retail section, one
giving access to the wholesale
section separated by a short length of
palisade fencing behind which stands a two-story building on which
appears the name of the
business, “Lenasia Nursery” and
identifies the structure as the “Security Office”. This building
came to be known as the
“guardhouse”. The photograph is cropped
at the top and does not show any structure on top of the first floor.
Accused 11 testified
that Capital Tobacco supplied cigarettes to him
and that his average turn-over of this product was about R750 000,00
per week.
[247] He testified that he was first
arrested on the present charges in early December 2003, released and
then re-arrested in June
2004. Accused 11 devoted a good deal of his
evidence to the security arrangements of his business premises the
sliding gate, the
palisade fencing, namely, the guardhouse. He
testified that he first instructed a builder to construct the
guardhouse in May 2003
but by June of that year it consisted of no
more than a large hole which was to accommodate a septic tank. It was
only in July 2003
that his builder started with the foundation of the
guard house which was completed in February 2004. Accused 11’s
evidence was
very specific in this regard, namely, that on his
fiftieth birthday, on 5 August 2003 he had said to his builder that
he was 50 years
old and the wall was 9 bricks high. At this point he
was suffering from a cash flow problem so he instructed his builder
to stop
the construction on the guard house. He went ahead, however,
to order and install the sliding gate because he needed it to protect
the building material which would arrive for the guardhouse. Accused
11 handed in an invoice in respect of this guardhouse indicating
that
it had been installed, invoiced and paid for on 26 September 2003.
Only after the gate was built did the building material arrive
and
the structure of the building was completed towards the end of
November or the first week of December 2003 but without doors
and
windows. Accused 11 described the structure as a double storey being
the ground floor and the first floor which comprised a shop.
[248] Accused 11 confirmed that at the
rear of his premises near the warehouse there were pallets which were
used when flour were
delivered. Accused 11 testified that the
internal road to the warehouse was not gravel but cement and that he
closed his premises
on Fridays between 12h00 an 13h00 for Muslim
prayers. He confirmed that he wore traditional Muslim dress from time
to time. He confirmed,
furthermore, that he was called “Achie”
and that no one else in his business had the same name. He confirmed
that since the erection
of the sliding gate to the wholesale section
persons wanting access thereto would have to wait at the gate until
the guard opened
it. It was put to him in cross-examination that the
guard house looked much older and his answer was that this was a
result of dust
which came from the nearby veld and because it stood
on the main road. When he was asked why Aspeling would falsely accuse
him of
purchasing the cigarettes his answer was that he could only
speculate that Aspeling was trying to protect his true buyer. To
accused
11’s knowledge there was no other nursery in Lenasia with
an owner called “Achie”. It was put to him that in two of
Aspeling’s
three statements he had mentioned accused 11. Accused 11
did not take issue with this proposition but stated that he was not
described
in any of these three statements.
[249] The witness called on behalf of
accused 11 was a Mr. John Mangongwa. He testified that he was the
builder who had built the
guardhouse for accused 11 and that he had
commenced construction towards the end of July 2003. At the beginning
of July he had built
the foundations and begun work on the brick work
towards the end of July. He had first built to the height of nine
bricks but had
then stopped as a result of a shortage of materials.
Instead he had begun doing building work on accused 11’s house. He
had recommenced
work on the guard house towards the end of September
and finished the job in the third week of December 2003 when only the
windows
and doors were still to be done.
[250] The witness was led on no other
subject other than his building of the guard house. He gave detailed
evidence as to how he was
able to remember the relevant dates with
such accuracy. The witness appeared to be in ongoing contact with
accused 11, testifing
that he had purchased a truck from accused 11
and that every month he had worked for accused 11’s children to pay
for the truck
which was still standing at accused 11’s premises.
[251] The detailed evidence given by
accused 11 and his witness regarding the construction of the guard
house was foreshadowed in
his counsel’s cross-examination of
Aspeling. Aspeling was cross-examined at some length regarding the
guard house and the sliding
gate and it was put to him that it only
came into (partial) existence in September 2003. He denied this
stating that he had travelled
the road on countless occasions and the
building had been standing for “years”. Aspeling also expressed
the opinion that it looked
like a very old building, far older than
two years old as was put to him by counsel. It was put to Aspeling
that if the Court accepted
the evidence concerning the gate and the
guardhouse there was only one inference to be drawn, namely, that
Aspeling had never been
at the premises.
[252] At a later stage in the trial
the State was granted leave to re-open its case and to lead evidence
regarding aerial photographs
taken of the area on 2 August 2003. To
this end the State called three employees of
AOC
Geomatics
, Mr. Graham
Slough, Mr. Meshack Thathane and a Mr. Allan Roy. Slough, a
photogrammetric surveyor testified that AOC was one of two
companies
in South Africa which did all phases of aerial photography work
including developing the film and producing the prints.
The company
had done work for the Johannesburg City Council since 1950 including
aerial mapping in 2000 and 2003.
[253] The witness identified a flight
index print (exhibit “G x 7(1)”) as the document recording the
various overlapping negatives
taken from a camera mounted on board of
the aircraft during the course of aerial photography on the given
day. The flight index print
in question included the negative number
478 taken on 2 August 2003. Exhibits “G x 7(2)-(5)” comprise the
composite photographs
reflecting the negative, numbers 477, 478 and
479 and then being blown up to reflect, ultimately, what was captured
only by the negative
number 478. Using other aerial photographs taken
by the SAPS and admitted at an earlier stage of the trial, the State
was able to
demonstrate that the premises appearing on a different
scale on each of the photographs were that of accused 11’s business
in Lenasia.
See exhibit “JJJ”, a photo album comprising
photographs taken in 2005. Slough testified that he had 40 years
experience in the
interpretation of aerial photographs and, when his
attention was directed to the largest scale blow-up of the photo in
question,
stated that he was able to identify a structure circled on
the photograph and a nearby tree, casting a shadow of almost equal
size.
It became common cause that the structure in question was the
guardhouse on accused 11’s premises.
[254] He testified further that the
height of the structure could be calculated from the aerial
photograph using
AOC
’s
computer software. The witness also identified exhibit “H x 7” as
a photograph of the same structure shown in stereoscopic
vision. When
the photograph was viewed through exhibit “J x 7”, a set of
cardboard spectacles with one green and one red lens,
the detail on
the stereoscopic photograph could be seen in three dimensions. This
exercise was performed by members of the Court
and counsel using the
said exhibits. The witness identified exhibit “K x 7” as the
logbook in the aircraft which records the
date of the relevant flight
and the details of the photography carried out on a particular flight
including the film number and the
number of the photo exposures.
[255] The witness confirmed that the
original negatives were taken on 2 August 2003. Examining what was
common cause was a picture
of accused 11’s business premises in
Lenasia, the witness identified what appeared to be a large hoarding
or billboard on top of
the guardhouse. As mentioned earlier this
hoarding or billboard does not appear on exhibit “YYY (2)”, the
photograph of the guard
house handed in by accused 11 but, on the top
right-hand corner, a small portion of what appears to be a stanchion
of the hoarding
is pictured. The witness expressed the opinion that
the shadow cast by the built structure in exhibit “J x 7 (5)” was
much higher
than one that would be cast by a structure only nine
bricks high.
[256] Mr. Thathane testified that he
was a qualified camera operator and ground surveyor employed by
AOC
Geomatics. In 2003 the
company had taken aerial photographs of the Johannesburg metropolitan
area for the local authority. The photographs
are aligned by a GPS
system and are taken in strips, every strip having a certain number
of overlapping photographs. The films were
then taken to the
company’s lab where they were processed. His job entailed
inter
alia
inserting the film
into the camera fitted to the aircraft and then, afterwards,
retrieving the magazine from the camera and conveying
it to the
company’s offices in film canisters. He was also required to
complete a logbook with details of the flight including
details of
the film used. He identified exhibit “K x 7” as the original and
a copy of the relevant log recording details of the
flight, film
number and numbers of the exposure taken in respect of a flight on 2
August 2003 when the negatives which produced the
photos in exhibit
“H x 7 (2)-(5)” were taken. Every detail in the flightlog save
for those in Koki pen had been entered by him,
those in Koki pen
having been completed by the lab technician, Johan Steyn.
[257] Using a light table brought into
Court for this specific purpose, the witness identified exhibit “L
x 7” as the original
negative number 478 of those taken on 2 August
2003 and recorded in the flightlog, exhibit “K x 7”, and
comprising the central
negative from which the photographs in the
exhibit “G x 7 (2) to (5)” and exhibit “H x 7” were produced.
The number appears
in a counter on the top right-hand corner of
exhibit “L x 7”. That negative, number 478, was one of many on
film number V13928.
The witness was also involved in the process of
checking prints produced from the film in question. He also
identified the canisters
before Court in which the film V13928 was
stored and identified furthermore the numbers of the negatives on the
flight index print
(exhibit “J x 7”) evidencing the numerous
negatives taken during the aircraft flight on 2 August 2003. The
witness confirmed
that he took the negative number 478 and that what
was depicted thereon was shown in the photographs in exhibit “G x 7
(2) to (5).
[258] Mr. Roy testified that he was
employed by the company as a draftsman and was also trained as
photogrammatist. Since 1999 he
had worked for the company as a soft
copy photogrammatist. He testified that he had produced the exhibit
“H x 7” and copies thereof
which was an anaglyph, a type of
three-dimensional photo, by using certain software purchased by a
company originally designed for
military purposes. He used the same
software to perform measurements of the guardhouse visible at the
entrance of the premises depicted
in exhibit “H x 7”. With the
software he was able to measure the ground height adjacent to the
building and the top point of
the building and, by subtracting them
was able to determine that the building at the time the photographs
were taken was 5,7 meters
high, give or take half a metre. The height
of the total structure, including the billboard on top, was, he
calculated as being 9,5
metres, give or take a half a meter.
[259] He confirmed that images 477,
478 and 479 were the negative which produced the photos depicted in
exhibit “G x 7(2) – (5)”.
Exhibit “G x 7(5)”, he confirmed,
reflected the same image as the anaglyph but the anaglyph is an
overlap of two images, namely,
the negatives 477 and 478. The witness
testified further that the structure on the anaglyph was consistent
with that shown on exhibit
“YYY (2)”, the photograph of the
guardhouse handed in by accused 11. He confirmed that he had not been
shown a photograph before
his evidence depicting the guardhouse at
ground level. Nor had he previously been alerted by any person to the
presence of a sign
or billboard on top of the structure. In response
to a further question the witness confirmed that the structure on top
of the billing
was approximately 3,8 meters in height.
[260] None of the evidence of the
employees of
AOC
Geomatics
led
by the State was substantially challenged and accused 11, although
afforded full opportunity to do so, declined to re-open his
case
either by testifying himself in response to such evidence or by
calling a witness or witnesses.
[261] The State urged the Court to
accept the evidence of Aspeling insofar as it implicated accused 11
and reject the evidence of
the accused and his witness as false. On
behalf of accused 11 it was argued that Aspeling’s evidence should
be rejected as being
unreliable particularly in the light of his
being a s 204 accomplice witness. In particular it was argued that
Aspeling’s identification
of accused 11 was suspect if not
irregular in that it was a so-called “dock identification” to
which no weight could be attached.
Before making that identification
Aspeling had last seen accused 11 at the latter’s business premises
on 3 October 2003. It was
argued, furthermore, that there was no
corroboration for Aspeling’s evidence and in the circumstances the
evidence of the accused
and his witness, which could not be faulted,
had to be accepted.
[262] It is so that an identification
parade is not only an accepted investigative procedure but also
serves an important evidential
purpose in that it can provide the
prosecution with evidence which is of far more persuasive value than
an identification in court.
See in this regard
R
v Sebeso
1943 AD 196
and
R
v Mputing
1960 (1) SA 785
(T) at 788G. In
S v Maradu
1994 (2) SACR 410
(W), Blieden J expressed the view that he could see
no reason why a dock identification should also not be inadmissible,
save in
certain special circumstances. This dictum was rejected in
Bailey v The State
(unreported CPD full bench decision, case number 215 / 2000, 31
August 2000) where Griesel J concluded, noting the validity of “the
proposition that a dock identification by itself, without more, has
limited, if any, evidential value” concluded that it “is
completely unnecessary… to go one step further by ruling a dock
identification inadmissible “save in special circumstances”.
In
S
v Matwa
2002 (2) SACR (E)
350E Leach J qualified the
dictum
in Maradu supra as follows (at 355i to 356a-b and 356f to g):
“
My conclusion is
that in a case such as the present, the question in issue is not the
admissibility of the dock identification but
the evidential value to
be placed thereon. Where a witness identifies an accused in the dock,
it forms part of the evidential matter
upon which the case must be
decided and I see no reason in principle to exclude it solely due to
it having been done in court. In
many, if not the majority, of cases
coming before our courts, the first occasion a witness has to
identify the offender is when he
or she gives evidence. The
admissibility or otherwise of evidence cannot be determined by having
regard to the degree of seriousness
of the offence upon which an
accused is tried, and it is wholly impractical to suggest that the
police should, for example, be obliged
to hold an identification
parade for the material witnesses to attend in each and every minor
case of disputed identity in order
to render their identification of
the accused admissible at a subsequent trial… No fixed rules can be
laid down. In each and every
case the judicial officer must decide
upon what weight, if any, is to be afforded to the dock
identification, regard being had to
all the material circumstances –
including those prevailing when the initial observation took place as
well as those under which
the identification in court is made. But to
exclude evidence of identity as inadmissible purely on the basis of
it being tendered
in the presence of the accused in the dock, is, in
my respectful view, incorrect.”
I am in respectful agreement with the
aforementioned views which, in my view, can be applied to the present
matter.
[263] Whilst an identification by
Aspeling of accused 11 pursuant to an identification parade may have
added something to the value
of his evidence in this regard, in my
view, in the circumstances of this matter it was by no means
necessary and its absence is not
a significant factor telling against
this aspect of Aspeling’s evidence.
[264] Aspeling’s identification of
accused 11 was not based upon a fleeting encounter in adverse
lighting conditions or similar
adverse circumstances. Aspeling
encountered accused 11 on three separate occasions between 25 June
and 3 October 2003. In all, his
estimate was that accused 11 had been
in his presence for approximately one hour. The identification of
accused 11 rested, furthermore,
not only on Aspeling’s
identification of accused 11’s facial features or bodily
characteristics. Aspeling identified accused
11 as “Achie”, the
owner or proprietor of the Lenasia Nursery. When accused 11 came to
testify he conceded that he was known
as “Achie” and that there
was no other “Achie” of whom he was aware who ran a nursery in
Lenasia.
[265] Finally, the circumstances of
Aspeling’s identification of accused 11 in Court were not those
which pertain in many or most
criminal cases with the accused being
the only person in the dock and therefore the obvious person for a
witness to point out when
asked to identify the alleged offender. The
accused was one of eleven persons, all of them men, some young but
others older. It does
not follow, as was contended, that he was the
only person to whom the witness would point as being a shopkeeper or
business person.
[266] Although accused 11, of course,
bears no
onus
in this regard, when asked why Aspeling, who according to him was a
total stranger, would implicate him in the robberies, accused
11
could do no more than suggest that Aspeling was seeking to protect
his true purchaser. That of course begs the question. Furthermore,
the evidence is persuasive that Aspeling knew the premises by reason
of his description of where he drove the truck, where the goods
were
offloaded and what was to be found at the back of the warehouse in
the form of pallets etc. Aspeling mentioned other convincing
detail
such as accused 11 wearing traditional Muslim clothing and the
presence of his son at some stage.
[267] It is noteworthy that accused 11
did not call any employee to testify that they had never offloaded
cigarettes brought by Aspeling
during the period in question and nor
did he call his son as a witness. A further important factor was that
accused 11 fitted the
profile of someone who could dispose of a large
quantity of cigarettes. He ran a substantial wholesale cigarette
business with a
weekly turnover of R750 000,00. Significantly,
furthermore, on all the signage relating to the business there is no
indication that
the Lenasia nursery was also a cigarette wholesaler.
This would mean, if Aspeling was indeed falsely implicating accused
11, that
he would have had to have prior knowledge from some other
source that accused 11 was indeed a cigarette wholesaler.
[268] It was argued that Aspeling’s
evidence could not be accepted in the absence of corroborating
evidence implicating the accused.
It is correct that there was no
direct corroborating evidence in the main trial. In terms of the
Court’s ruling, furthermore, none
of the evidence emanating from
any of the trials-within-a-trial could be treated as admissible
against accused 11. As previously
explained in relation to accused
10, accused 11’s counsel too, although his client was not a direct
party to the various trials-within-a-trial
was allowed to
cross-examine and at times did so quite extensively. However, there
were occasions on which the prosecutor objected
to such
cross-examination on the grounds that accused 11 had no direct
interest in such trials-within-a-trial.
[269] By way of background, State
counsel initially did not indicate that the State might seek to rely
on the cell phone records relating
to other accused in order to
implicate accused 11 and there was no disputed search of accused 11’s
premises and thus it appeared
accused 11 had no direct interest in
the trials within the trial. As a consequence of the Court’s
ruling, when State counsel sought
to put certain material to accused
10, who was similarly affected, the Court ruled that the State was
precluded from doing so. In
the result the only evidentiary material
which can be held against accused 11 is that which was presented in
the main trial, accused
10 and 11 having additionally refused to
agree to the contents of the trials-within-the-trial being made part
of the record of the
trial as a whole.
[270] Notwithstanding the Court’s
ruling that evidence in and derived from the trials-within-the-trial
could not be used against
accused 11, it was additionally argued on
his behalf that the limitation on his counsel’s right to
cross-examination therein was
so gross an irregularity that it
rendered his trial unfair. It was further contended that, using its
powers in terms of s 173 of
the Constitution, Act 108 of 1996, the
Court should on the basis of this alleged irregularity alone, acquit
accused 11. In terms
of the relevant section a High Court has the
inherent power to regulate its own process and develop the common
law. Whatever that
power encompasses, however, it does not entitle
this Court to function as a court of appeal or review in respect of
its own decisions.
There is, therefore, no merit in this submission.
[271] Ultimately, the question is not
solely whether there is material corroborating the evidence of the
accomplice witness but whether
the State has proved its case against
an accused beyond reasonable doubt. In making this determination the
Court can also have regard
to other factors or safeguards such as the
accused’s failure to testify or the fact that he is a lying
witness.
[272] It is in this context that the
evidence relating to the guardhouse assumes critical importance. From
the full account given
of the evidence led in this regard it is quite
apparent that the accused made the alleged non-existence of the
guardhouse until its
final completion in December 2003 one of the
foundations of his defence and a major, challenge to Aspeling’s
credibility. However,
if the evidence of the employees of
AOC
Geomatics
company is accepted it follows ineluctably, that as of 3 August 2003,
at a time when accused 11 stated the structure was nine bricks
high,
not only was the structure there in its full size but it had a large
billboard on top. In my view the evidence of the three
employees of
AOC
is not only graphic but is unassailable.
[273] The only challenge which accused
11 could mount to this evidence was the submission that it was not
properly proved that the
negative number 478 had been taken on the
day and on the flight in question because the frame and film numbers
had been entered on
the flight log sheet by another
Geomatics
employee who was not called
by the State. This line of attack was, moreover, raised in argument
and not clearly put to any of the
three witnesses for them to comment
upon.
[274] In my view, the evidence of the
three employees called by the State and most notably that of Thathane
proved beyond any reasonable
doubt that the negative placed before
the Court was that from which exhibit “G x 7(2) – (5)” and all
the photographic images
handed up into Court was derived, was taken
on 2 August 2003.
[275] Accused 11 chose not to respond
to the evidence in any substantive manner and in my view the only
inference that can be drawn
from his failure to do so was that he saw
no likelihood of successfully disputing the evidence and was
unwilling to expose himself
to further cross-examination on this
subject.
[276] It must also be borne in mind
that, from the time that it was first made, Aspeling disputed the
proposition that the guardhouse
had only been built recently and
indeed expressed the view
inter
alia
on the basis of the
photograph, exhibit “YYY (2)” that the building was far older
than one or two years old. Having regard to
the exhibit in question
Aspeling’s view does not appear to be obviously incorrect and the
explanation that dust caused its aged
appearance carries no weight.
It appears furthermore that that photograph (exhibit “YYY (2)”)
is deliberately framed in such
a manner as to obscure the top of the
structure and thus the billboard on top.
[277] It follows from this that
accused 11 lied deliberately and at length in his evidence when he
testified as to the age of the
building and the circumstances in
which it came to be built. Not content therewith he procured the
false evidence of his builder,
Mangongwa, to support him in these
lies, this false evidence only being exposed by the fortuitous
co-incidence of the aerial survey
photography carried out in August
2003. The question that must be asked is why would someone, innocent
of any involvement in the
purchase of stolen consignments of
cigarettes, systematically lie to Court and procure false evidence in
this regard?
[278] Prior to the re-opening of the
State’s case and the leading of the evidence which effectively
destroyed his credibility, accused
11 did not create a particularly
unfavourable impression as a witness and he fared reasonably well,
for the most part, in cross-examination.
What did become clear
however was that accused 11 was adept at adapting his evidence to
suit what he saw as the exigencies of the
situation. A clear example
of this was his evidence relating to his first arrest in December
2003 which he said was effected by three
policemen and four people
from BATSA. He mentioned “Captain” Cottle and “Inspector”
Jones as showing him the warrant of arrest.
[279] Later in cross-examination the
main actors in this arrest became Jones and a Captain Vassen. The
accused stated unequivocally
that Inspector Heydenrich, the original
investigating officer before his death, and Inspector Jonker, his
successor, were not present.
However, the particulars of claim in a
civil action issued out on his behalf as plaintiff were then put to
him (exhibit “V x 6”).
In the action he sued for unlawful
detention following upon his initial arrest and the particulars named
only “Inspector Heydenrich
and/or member of the SAPS whose names
and ranks are unknown to the plaintiff” as those who arrested him.
Clearly, until he was
unexpectedly confronted with the particulars it
suited accused 11, to contend, as had many of his fellow accused that
the prosecution
was a conspiracy driven by BATSA security officials
and that such officials were in the forefront of his arrest. It must
also be
said that Mr. Mangongwa initially created a good impression
as a witness before the evidence of the aerial photography destroyed
his evidence.
[280] The exposure of accused 11 as a
lying witness, and guilty not merely of a passing lie, provides, in
my view, the guarantee or
safeguard which makes it safe to accept
Aspeling’s evidence and to reject that of the accused regarding his
involvement in the
purchase of the cigarettes. I reach this
conclusion not simply on the basis of the finding that accused 11
gave false evidence in
regard to a significant area of dispute, but
also in the light of Aspeling’s evidence as a whole and the
probabilities as discussed
above.
[281] I accept then Aspeling’s
evidence of the delivery of the consignments of cigarettes to accused
11’s premises immediately
after the Rawsonville and Darling
robberies. There was, however, no direct evidence of the delivery of
cigarettes to accused 11 after
the Kinkelbos robbery or, for that
matter, of his purchase thereof. There is considerable indirect
evidence pointing in that direction,
namely accused 2’s phone call
to accused 11 overheard by Aspeling at Comaro on the morning of 3
October. There was furthermore
the conversation between accused 11,
Aspeling and others at accused 11’s business premises later that
day when accused 11 stated
that accused 2 had promised to deliver the
parcel that day but had not yet done so.
[282] There is also the evidence that
in later days the delay in payment to Aspeling and others of their
share of the proceeds of
the robbery was ascribed to the delay in
accused 11 paying for the cigarettes. However, even accepting this
evidence, it is not the
only inference that can be drawn therefrom
that the cigarettes were indeed delivered to accused 11 and purchased
by him. It is possible,
although not probable, that accused 1 and 2
found another purchaser for the last consignment of cigarettes and
used accused 11’s
name to disguise the true recipient of the
cigarettes, thereby protecting the consignment from the attentions of
accused 3, 6, 7
etc. In the result I am not satisfied that accused 11
can be found guilty, beyond reasonable doubt, of purchasing the last
consignment
of cigarettes.
THE COUNTS OF MOTOR THEFT
[283] The State charged various
accused with a total of 6 counts of theft of motor vehicles, namely
counts 3, 7, 8, 9, 13 and 14.
All of the accused were discharged on
counts 3 and 7 at the close of the State case. In relation to count 8
the State conceded in
final argument that it had made out no case on
this count against any of the accused. This leaves counts 9, 13 and
14. Counts 9 and
13 relate respectively to a white
Volkswagen
Polo
and a white
BMW
vehicle found on the
premises of accused 7 upon his arrest on 9 October 2003. The
remaining count, count 14, related to a white
Volkswagen
Golf 4
vehicle found on the
premises of accused 3 upon his arrest.
COUNT 9 : THE WHITE
VOLKSWAGEN
POLO
[284] In this count it was alleged
that the accused had stolen the vehicle, the further particulars of
which were unknown, it being
the property or in the lawful possession
of a person unknown to the State. No evidence was ever led as to the
true identity or ownership
of the vehicle or where and when it was
stolen. Two police witnesses testified regarding vehicles. Captain
Grobler testified that
he examined the
Polo
,
a white 2002 model 1.6 litre, on 8 March 2004. He ascertained that
this vehicle’s chassis number had been cut out and replaced
with a
chassis number of another Volkswagen vehicle, a 2001 model
Polo
1.4 . The original engine number of the 1.6 engine had been removed
with a grinder and replaced with the particulars of the 1.4
Polo
.
This was clearly visible with the naked eye. The transponder inserted
by the factory during the manufacturing process had also been
removed
and replaced with another.
[285] Captain Grobler was of the
opinion that the vehicle’s identity had been deliberately changed.
Aspeling’s evidence was that
a white
Volkswagen
Polo
had been used as the “police vehicle” during the Darling robbery
which took place on 12 August 2003. Grobler also testified that
all
three of the vehicle’s original code numbers had been removed and
replaced with other numbers. The chassis number in the body
work in
the front panel of the engine cabin had been professionally removed
and another number put in its place. The shock absorber
housing had
also had the new chassis number inserted onto it. The original engine
number on the engine block had been scoured out
with a grinder. It
had been so deeply ground out that the original number could not be
detected. All the windows of the vehicle had
been replaced with new
windows on which no numbers appeared.
[286] In the witness’s opinion he
could find no sign that the vehicle was a composite vehicle, the
bodywork being one unit. According
to the witness, externally the
vehicle’s identity had been changed from a 1.6 to a 1.4
Volkswagen
Polo
, however the bodywork,
interior and engine was definitely that of a 1.6 cc
Polo
vehicle. The police computer system revealed that this vehicle had
been registered on 3 September 2003 in the name of Mr. LG Smith
of
Ennerdale under identity number 770404 5246 089, namely, accused 7.
[287] Senior Superintendent Poolman,
attached to the mechanical engineering section of the forensic
laboratory, established his credentials
as an expert witness in the
area of the identification of stolen vehicles and related subjects.
He testified that he had examined
the relevant white
Volkswagen
Polo
and white
Volkswagen
Golf 4
and handed in a set
of photographs in respect of the
Polo
vehicle (exhibit “B x
6”). He testified that in two places on the vehicle body work,
portions had been removed and welded in.
The vehicle had definitely
not been involved in a serious accident and there was no apparent
reason or need for those portions to
have been patched into the
vehicle. According to him it was clear that that portion of the
bodywork on which the VIN number appeared
had been removed from
another vehicle in a manner which was associated with how criminal
syndicates dealt with stolen cars.
[288] It was not disputed that the
vehicle which Captain Grobler and Superintendent Poolman had
inspected was that seized from the
premises of accused 7. Accused 7
testified that the charge of theft against him in regard to the
Volkswagen Polo
was part of the plot against him. He stated that he had lawful papers
for the vehicle, the
Polo
having been registered in his name. He purchased it at the beginning
of September 2003 from
Power
Auto Spares
as it had been
involved in an accident. He had purchased the 1.6 body together with
a 1.6 engine. He had no receipt from
Power
Auto Spares
to validate the
purchase. When asked what he had done in three years to obtain such
documentation the accused stated that he would
ask his brother. He
could not remember how much he paid for the
Polo
nor when the vehicle was registered in his name. He stated that he
took the vehicle to panel beaters and they had put the car into
working order. He stated that the police were in possession of the
receipts in respect of payments to the panel beater. There had
been
no tampering with the chassis or the engine numbers.
[289] Asked about evidence that
portions of the vehicle had been grafted in to disguise its original
numbers, the witness attributed
this to the panel beater. For their
work he had paid them R8 000,00 – R10 000,00, explaining that this
was a major job on the part
of the panel beaters. Eventually the
accused stated that the panel beaters had moved. He also alleged that
the vehicle has been registered
in his name on 9 October 2003
notwithstanding Grobler’s evidence that the date of registration
had been 3 September 2003.
[290] Accepting at face value accused
7’s evidence that he purchased the vehicle in September 2003 it is
impossible to see how he
could have registered it in his name on 3
September given that it required extensive panel beating work to
place it in a roadworthy
condition and would then have to have
undergone a roadworthy test. There were numerous other
improbabilities in the accused’s version
of how he came to be in
possession of the vehicle. He did not explain the nature and extent
of the work which must have been done
to the vehicle by the panel
beaters nor, for that matter, how the extensive work which they
performed would have cost him only R8
000,00 – R10 000,00. The
accused could not produce one document to prove his purchase of the
vehicle or the extensive repairs commissioned
from the panel beaters
but sought refuge in the repeated allegation that police had seized
this documentation.
[291] Despite having three years in
which to procure duplicate proof of the purchase or the repairs, the
accused failed to. From Poolman
and Grobler’s evidence it is clear
that the vehicle had been extensively doctored to conceal the true
ownership and origin of the
vehicle. The accused was unable to
produce any proof that he had acquired the vehicle lawfully or had it
lawfully repaired despite
more than adequate opportunity to do so.
There is no reason to doubt any of the evidence given by the police
concerning the nature
of the work done to the vehicle and that its
identity had been thereby concealed in a manner consistent with how
criminals conceal
the identity of a stolen vehicle. In my view, the
accused’s version of how he came to be in possession of the vehicle
must be rejected
as false. It follows then, in the absence of an
explanation for what was clearly a stolen vehicle the identity of
which had been
disguised, the only possible inference which can be
drawn is that the accused either stole the vehicle himself or was
knowingly in
possession of a stolen vehicle and on that basis he must
be found guilty of theft on this count.
COUNT 14 : WHITE
VOLKSWAGEN
GOLF 4
[292] Captain Grobler referred to
several photographs of this vehicle (exhibit “S (3) to (5)”)
indicating what he testified was
a 2001 model 1800 cc
Volkswagen
Golf 4
. He stated that all
the original code numbers had been removed from the vehicle and
replaced with numbers relating to a 2000 model
1800 cc GTi
Volkswagen
Golf
. The transponder had
also been removed and all the windows replaced with windows without
identifying numbers on them. In his original
evidence he stated that
the vehicle showed no signs of having been built up or patched
together. The police information indicated
that this vehicle had been
registered on 30 September 2003 in the name of ST Da Costa of
Toekomsrus, Randfontein. This was the person
whom accused 3 later
claimed was his cousin. When Captain Grobler was recalled to give
evidence some months later he testified that
Senior Superintendent
Poolman had in the meantime inspected the vehicle and made findings
different to those which he, Grobler, had
initially made. Grobler
stated that he had erred in his earlier conclusions that the
Golf
showed no signs of cuts or welding marks and that it had not been
built up or patched together. His opinion now was that the front
portion of the
Golf
had
been joined to the back portion of another vehicle and thus that it
was a composite vehicle.
[293] In respect of the transponder
found in the Golf 4 he advised that the Volkswagen factory indicated
that they had no record of
any such transponder. Although the new
replacement identification numbers indicated that it was an 1800 cc
GTi Golf, it was in fact
a 2 litre Golf. The manner in which the Golf
had been changed was that in which motor theft syndicates customarily
changed the identity
of stolen vehicles. In due course Superintendent
Poolman testified regarding the Golf motor vehicle which he had
inspected and handed
in a set of 14 photos (exhibit “C x 6”). It
was his conclusion that the vehicle consisted of two vehicles, the
front portion
having been welded onto the rear part of another
vehicle thereby forming one vehicle. In his view the work had been
done very professionally.
[294] When accused 3 testified he
admitted that the Golf had been found on his premises but stated that
it was a car which he had
built up from scrap parts, both from the
Cape and the Reef, and that he had sold the vehicle to his cousin or
nephew, one Shaun Da
Costa. He was not able to produce any receipt
for his purchase of the car parts or any documents evidencing the
alleged sale of the
vehicle to his cousin. He had some difficulty
explaining why, if he had sold the vehicle to his cousin by the end
of September, it
was still sitting in his yard on 9 October 2003. Nor
did he ever call Da Costa to confirm the purchase.
[295] Notwithstanding the problems
with the accused’s version the fact remains that, according to
Poolman’s evidence, the vehicle
was a composite one and,
furthermore, the State was not able to prove, except by inference,
that either of the main parts of the
vehicle had in fact been stolen
and if so, from whom and when. The charge itself is extremely vague,
alleging as it does that the
vehicle was stolen at a location unknown
to the State, on a date unknown but before 2 October 2003. Nor was
the State able to allege
any ownership details. No evidence was led
of any such theft in relation to any of the composite parts of the
vehicle. In the circumstances
I am of the view that the evidence led
by the State is insufficient to found a conviction of theft against
accused 3 beyond any reasonable
doubt and he is acquitted on this
charge.
COUNT 13 : THE WHITE
BMW
[296] Count
13 alleged that a white
BMW
vehicle with a specified engine number and the registration number
CA
344 730
had been stolen on
15 September 2003 at Mowbray in the district of Wynberg, Cape Town
whilst it was the property or in the lawful
possession of William
James Jenkins. Mr. Jenkins testified that during September 2003 he
had been the owner of a white
BMW
325i vehicle with the aforesaid registration number. On 15 September
2003 he had been robbed of his vehicle by two black men who
approached him on foot and threatened him with a knife. Towards the
end of January or early February 2004 he had received a phone
call
from
BMW
and flew up to Johannesburg to identify his vehicle. He identified
the
BMW
in a vehicle pound as his and took two photographs thereof which were
handed in as exhibits “R (1)” and “”R (2)”.
[297] The witness was shown exhibit
“S(1)” – “S(5)” and testified that the vehicle therein
depicted was his vehicle. The
vehicle was damaged; it had a bullet
hole in the bonnet, the right front fender was damaged, the right
back window broken and the
radio CD-shuttle was missing. Jenkins
specifically mentioned the fact that he had bought special mats for
the vehicle prior to it
being robbed. They had been too big and he
had had to cut them smaller. When he examined the vehicle in the
pound he found the same
cut-to-size mats in the vehicle.
[298] The witness’s evidence was not
disputed by any of the accused. A Mr. Gerrit van Rensburg testified
that he had been employed
by
BMW
,
SA as a vehicle examiner. On 17 March 2004 he had examined a white
BMW
at the police vehicle storage depot, Van Rhyn Deep, Benoni. There he
noticed that although the original engine was still in the vehicle
both the engine and the chassis number had been changed. He examined
the vehicle’s windows on which a unique serial number always
corresponded with the chassis number of the vehicle. He noticed that
the two numbers did not correspond in this instance. He nonetheless
was able to determine ownership of the vehicle and contacted the
owner, a Mr. WJ Jenkins, who later identified the vehicle. Gauteng
number plates with registration
PPF
463 GP
were attached to the
vehicle. There were bullet holes in the boot as well as the engine
hood.
[299] Mr. Bradley Allan testified that
he worked as a consultant for
BMW
and had purchased the
BMW
shown in the photo, exhibit “S (1)”. New engine and chassis
numbers had to be stamped on the engine and chassis by the police.
He
re-registered the vehicle and obtained police clearance. He
determined from the original registration document that a Mr. Jenkins
had been the previous owner.
[300] It will be recalled that
Aspeling testified that accused 7 had driven a white
BMW
vehicle during the
Kinkelbos robbery and that the same vehicle had been involved in the
shooting incident in Lenasia South on 3 October
2003. Aspeling later
testified, through the photographs of the vehicle confiscated from
accused 7’s premises, that it was the same
vehicle as that used in
the robbery.
[301] Captain Grobler testified that
he examined the
BMW
and
found that it was a 2001 325i model as depicted in the relevant
exhibit pictures. The vehicle’s engine number had been removed
and
another number superimposed. The window on the driver’s side was
replaced and the engine number was sandblasted onto it. None
of the
original numbers punched into the vehicle or applied during the
manufacturing process could be determined. The shock absorber
cover
on which the chassis number normally appears had been replaced as had
the manufacturer’s plate, evidencing a certain number,
had also
been replaced. Nonetheless, ownership of the vehicle was determined
and the apparent owner, a Mr. Jenkins had in due course
identified
the vehicle as his property. He had identified the vehicle by the
following features:
the mats he had put into the car;
electrical seats;
a blind in the rear window;
a boot spoiler on the boot;
a central arm control;
the dashboard being one decorated
with wood;
the seats being a unique shade of
grey.
Jenkins had advised the witness of
these characteristics even before he examined the vehicle. On the
vehicle was damage which appeared
to have been caused by bullets at
the rear in the spoiler and the boot as well as a bullet hole in the
bonnet. On the rear of the
vehicle there was no sign indicating the
size of the engine, a feature which Jenkins had specially ordered
prior to purchasing of
the vehicle. According to the police records
this vehicle had been stolen on 15 September 2003 and registered in
the name of a Mr.
LG Smith of 47 Minerva Crescent, Ennerdale on 19
September 2003. This was accused 7’s address, initials.
[302] When accused 7 gave evidence he
admitted that the
BMW
had been found on his premises as well as the Volkswagen Polo. He
stated that the
BMW
had been lawfully registered in his brother’s name because it was
his brother who had taken the car for clearance and roadworthy.
He
explained that he had purchased the vehicle on 14 August 2003 from
one “Kusa”. The
BMW
was not “complete”, the seats being loose, the doors off and the
grille and lights being imperfectly attached. He added that
a portion
of the body work in the passenger’s footwell and another portion of
the vehicle’s body was missing. Other small parts
of the vehicle
were missing. Asked if he had any documents which indicated that he
purchased the car in August 2003, accused 7 replied
that he did not.
Nor did he have any documents showing that the vehicle was taken to
panel beaters and returned to him on 29 September
as he claimed. When
asked whether he had made any attempt to obtain documentation from
the panel beaters he answered that he had
but they were ”gone”.
He stated that he had ensured that the engine number and chassis
number were the same as that reflected
in the documentation, but that
it was not an original engine, another engine having been fitted to
the vehicle. According to him
Tiza Thapelo, this being the full name
of the person from whom he had purchased the
BMW,
was dead. He alleged in general terms that the police officials who
had testified regarding the
BMW
had lied.
[303] In my view the accused’s
evidence casts no serious doubt upon the evidence given by the police
relating to the vehicle. The
State evidence, particularly that
relating to the identification of the vehicle, was in my view
convincing and must be accepted.
Similarly I accept, without
reservation, the evidence relating to Jenkins’s positive
identification of the vehicle. Accused 7 was
able to furnish no proof
at all of how he came by the vehicle, its alleged repair in a panel
beater shop and nor did he call his
brother to confirm his account of
how the vehicle came to be roadworthied and registered. Accused 7
also claimed that the police
had seized his license papers to the
vehicle, but even if this is so, however, the existence of papers
registering the vehicle in
the name of his brother or his name (four
days after Jenkins was robbed) in no way offsets the evidence that
the vehicle was the
same one as was stolen from Jenkins on 15
September 2003.
[304] It will be noted furthermore
that the vehicle was registered in his name three or four days after
Jenkins was robbed of the
vehicle in Cape Town. To my mind there is
only one inference which can be drawn and that is that accused 7
acquired possession of
the vehicle knowing that it was a stolen
vehicle and registered it in his brother’s name or his name well
knowing that the vehicle’s
identification marks had been changed to
attempt to disguise its true origins. Given the elapse of only 4 days
between the theft
and the fresh registration, the probabilities are
that the accused performed this work himself or commissioned the work
but it is
not necessary to make a finding in this regard. Whatever
the case, given the accused’s false explanation of how he came to
be in
possession of a very recently stolen vehicle, there can be no
doubt that the State proved the count of theft against accused 7
beyond
any reasonable doubt.
DISCUSSION OF THE COUNTS PROVED
AGAINST THE ACCUSED
[305] Up to this point I have, save
for three counts of theft of motor vehicles (counts 9, 13 and 14)
dealt only in general terms
with the evidence presented by the State
against the various accused and their defence. I shall now deal with
each of the accused
seriatim
in order to determine which counts were proved against them. I shall
deal only with those counts on which the accused were not discharged
at the close of the State case. However, I shall only deal with the
POCA counts, namely, counts 1, 2 and 23 to 25 after dealing with
the
remaining counts. This would appear to be the most logical approach
given the manner in which the State framed the charge i.e.
alleging
that the pattern of racketeering activities (as set out in annexure
“A”) comprised the acts charged in counts 1 and
2.
ACCUSED NUMBER ONE
Counts 4, 5 and 6
[306] These counts deal with the
Rawsonville robbery and the abductions of the two BATSA employees,
namely the driver and his assistant.
Aspeling’s evidence was that,
although he had made a low-key entrance, by the day of the
Rawsonville robbery accused 1 was in full
control of the operation.
It was he who instructed Aspeling telephonically to go to various
spots and he himself was at the spot
where the BATSA truck was first
robbed. By reason of his disability accused 1 never physically
participated in the robbing of the
truck but he was clearly in charge
of the entire operation and was at or near the scene of the robbery.
Furthermore, Aspeling’s
evidence was that earlier, over the
weekend, there were planning discussions in preparation for the
robbery and accused 1 had played
the leading role therein.
[307] It is not necessary for
convictions on counts 4, 5 and 6, that accused 1 physically
participated directly in the robbery or
the kidnappings. The doctrine
of common purpose provides that if two or more persons decide to
embark on some joint unlawful activity
the acts of one are imputed to
the other/s which fall within their common purpose. See
R
v Duma and Another
1945 AD
410
at 415 and
R v Shezi
and Others
1948 (2) SA 119
(A) at 128. In
S
v Thebus
[2003] ZACC 12
;
2003 (2) SACR 319
(CC),
2003 (6) SA 505
(CC) it was held that the doctrine of common
purpose is not unconstitutional as it did not infringe on the right
to dignity and freedom.
The Constitutional Court found that the
doctrine did not relate to a reverse onus and there is no reasonable
possibility that an
accused person could be convicted despite the
existence of a reasonable doubt as to his/her guilt. In S v
Safatsa
1988 (1) SA 868
(A), the
leading case on common purpose, it was held that the doctrine was
based on the concept of active association by one person
with
another’s unlawful act.
[308] In accused 1’s case it is not
necessary to consider what part he played since on a conspectus of
the evidence as a whole it
is quite clear that there was a prior
agreement to rob the BATSA vehicle and to temporarily abduct the
driver and the passenger in
order to accomplish this goal. It is
clear furthermore that accused 1 was party to that agreement, as has
been demonstrated by his
overall overseeing of the operation and his
presence at the various scenes of the physical robbery.
[309] In the circumstances I am
satisfied that accused 1’s guilt has been proved on these counts
beyond reasonable doubt and he
is convicted thereon.
Count 8
[310] On this count the State conceded
that there is no case against any accused and accused 1 is acquitted
thereon.
Count 9
[311] I have already found that
accused 7 was guilty of the theft of this motor vehicle. The State
failed to prove precisely when
the vehicle was stolen, that accused 1
knew that the vehicle was stolen or indeed even that it was this
particular
Volkswagen Polo
which was used in one or more of the robberies. In the circumstances
there is no acceptable basis for finding accused 1 guilty on
this
count and he is acquitted thereon.
Counts 10 - 12
[312] These
counts cover the Darling robbery and the associated kidnappings.
Aspeling’s evidence was that accused 1 initiated the
Darling
robbery and was in control of the operation from beginning to end. At
one stage there was a discussion at the
Waterfront
Suites
as to who would pose
as the police officer. Accused 1 then decided that accused 4 and 6
would assume those roles. Aspeling testified
that accused 1 was
always doing the planning and phoning. Accused 1 was directly
involved in the robbery on the morning in question
being driven in a
silver
Audi
by Zackie to the scene of the robbery and escorting Aspeling and his
truck back to Cape Town after the robbery. As in the Rawsonville
robbery the cigarettes were transported back to accused 1’s
residence in Gauteng where he oversaw their sale and the distribution
of the proceeds to his accomplices. The
modus
operandi
used in this
robbery was exactly the same as that in the Rawsonville robbery,
namely, the use of a bogus police vehicle to stop the
BATSA truck,
the removal of the driver and his assistant from the scene of the
hold-up and the loading of the goods into the truck
driven by
Aspeling. On the same reasoning as that applied in relation to the
Rawsonville robbery, I find the State to have proved
accused 1’s
participation in these counts beyond reasonable doubt and he is duly
convicted thereon.
Count 15
[313] This relates to the first
Kinkelbos robbery when the BATSA truck was stopped and the driver and
his assistant were robbed of
the contents and abducted. Aspeling’s
evidence in this regard was that the planning for the robbery was
initiated by accused 1
and 2 who went as far as joining him in a
scouting trip to the Eastern Cape which involved monitoring BATSA’s
premises, following
one of its trucks along the Alexandria route and
selecting a spot for the robbery. However, Aspeling’s evidence is
equally clear
that disaffected members of the group, led by accused 3
decided to cut accused 1 and 2 out of the robbery and went ahead and
executed
the robbery on their own. Unbeknownst to them, however,
accused 1 and 2 were aware that they were being double-crossed and
were in
the vicinity of the robbery when it took place. They took no
part in such robbery, however, and therefore there is no basis upon
which either can be convicted on this count. Accused 1 is acquitted
on count 15.
Counts 18 and 19
[314] These counts deal with the
robbery of Aspeling of the consignment of cigarettes robbed from the
BATSA truck at Kinkelbos and
the former’s cell phone and firearm.
It is alleged that aggravating circumstances were present in that a
firearm was used. Aspeling’s
evidence was clear that he was
hijacked at gunpoint by accused 1, 2 and Denzil Boyles.
[315] Clearly accused 1 associated
himself with this hijacking and, in all probability, in keeping with
the usual
modus operandi
,
conceived and managed the plan to “hijack the hijacker”. During
the course of the journey back to Gauteng he gave various
instructions
and his credit card was used for purposes of the stay in
the
Formula One
Hotel, Alberton. The vehicle in which accused 1 was a passenger,
escorted the hijacked truck carrying Aspeling and accused 2 back
to
Gauteng. In the circumstances the State has succeeded in proving its
case under these two counts against accused 1 and he is convicted
on
counts 18 and 19.
Counts
20, 21 and 22
[316] Count
20 alleges that accused 1, 2 and 6 attempted to kill Aspeling and
various police officials or employees at the scene of
the
confrontation in Lenasia South. It is clear that the wild shootout
which occurred on the day in question was a confused scene.
Gunshots
were clearly fired as is evidenced by the fact that accused 2 was
wounded and various bullet holes were found in the
Jetta
and the
BMW
.
Aspeling’s evidence was that accused 6 and accused 1 opened fire
with firearms. Aspeling’s evidence was quite clear that as
he
emerged from his vehicle accused 1 fired at him, narrowly missing
him. On behalf of accused 1 it was denied that he had played
an
active part in the shooting incident. He and various other accused
put up what can only be described as a completely fanciful
version of
the shootout casting Aspeling and various mysterious unknown black
men as the aggressors.
[317] In my view that version must be
rejected as false. Aspeling’s account of what took place is
entirely logical and consistent
with his description of the events
leading up to the shooting incident and in my view must be accepted.
Accused 1 did not enter the
witness box to testify and thus
Aspeling’s evidence that he shot directly at him is essentially
uncontroverted save by the false
account various other accused gave
of the incident. In the circumstances I am satisfied that the State
has proven that accused 1
attempted to kill Aspeling. There is,
however, absolutely no evidence that any of the accused shot at the
police who inadvertently
arrived upon the scene. Accused 1 is,
therefore, convicted on count 20.
[318] According to Aspeling’s
evidence he eventually had to pay R1000,00 to accused 1 to regain
possession of his firearm. Accused
1 handed him back his firearm upon
receipt of the money after firstly removing the ammunition from it.
All this took place in Ennerdale.
In the circumstances the State has
in my view proved its case against accused 1 on counts 21 and 22
namely that he was wrongfully
in possession of the firearm in
question and ammunition and he is found guilty thereon.
ACCUSED NUMBER TWO
Counts 4, 5 and 6
[319] Aspeling’s evidence
establishes that accused 2 was closely involved in the Rawsonville
robbery. He was on the scene of the
robbery and was seen climbing out
of the cab of the BATSA vehicle with the truck driver. He thereafter
assisted in loading boxes
of cigarettes into the truck driven by
Aspeling. As accused 1’s brother and one of the core members of the
enterprise, he must
have been well aware of the plan to abduct the
driver and his assistant so as to both remove them from the scene of
the robbery and
the vehicle and to make it more difficult for them to
contact their employers and raise the alarm. Accused 2 is found
guilty on counts
4, 5 and 6.
Count 8
[320] The State sought no conviction
against any accused on this count and accused 2 is acquitted thereon.
Count 9
[321] For the same reasons which led
to the acquittal of accused 1, accused 2 is acquitted on this count.
Counts 10 – 12
[322] These counts relate to the
robbery and kidnappings which constituted the Darling robbery.
Aspeling’s evidence again established
that accused 2 played a
central role in this robbery, was present on the scene of the robbery
and assisted in offloading the cigarettes
from the BATSA truck. He
drove back to Gauteng as Aspeling’s passenger in the truck. The
State has in my view proved its case on
these counts against accused
2 and he is convicted on counts 10, 11 and 12.
Count 15
[323] For the same reasons as those
applying to accused 1 on this count, accused 2 is found not guilty on
this count.
Counts 18 and 19
[324] As
I have indicated, Aspeling’s evidence that he was robbed by accused
1, 2 and Denzil Boyles is accepted. Accused 2 played
a leading role
therein, being the person who pointed a firearm at Aspeling, brought
him to a halt, entered the cabin of the truck
and at gunpoint
required Aspeling to hand over his firearm and cell phone. Thereafter
he held Aspeling at gunpoint whilst the latter
drove back to Gauteng.
I am satisfied that the State has proved these charges against
accused 2 and he is found guilty on counts
18 and 19.
Counts 21 and 22
[325] It follows from the Court’s
acceptance of the evidence relating to accused 2’s role in the
robbery and kidnapping of Aspeling
that accused 2 possessed
Aspeling’s firearm and ammunition without holding a license, permit
or authorisation to possess that firearm
or ammunition and he is
found guilty on counts 21 and 22.
ACCUSED NUMBER THREE
Counts 4, 5 and 6
[326] Aspeling’s evidence
established that accused 3 participated in the Rawsonville robbery.
Aspeling identified accused 3 as being
at the scene of the robbery
and emerging out of the cab of the BATSA truck. He clearly associated
himself with the robbery and the
concomitant kidnappings. He is found
guilty on counts 4, 5 and 6.
Count 8
[327] The State sought no conviction
against any accused on this count and accused 3 is acquitted thereon.
Count 9
[328] Accused 7 has been found guilty
of the theft of the white
Volkswagen
Polo
vehicle which is the
subject matter of this charge. There is, however, no evidence linking
accused 3 to the theft of that specific
vehicle. Although there is
evidence that a white
Volkswagen
Polo
was used in one or
more of the robberies the State has been unable to place any evidence
before this Court indicating that the vehicle
found on accused 7’s
premises was definitely used in any of the robberies. In the
circumstances there is no basis to convict accused
3 on this count
and he is acquitted on count 9.
Counts 10, 11 and 12
[329] Aspeling’s evidence
established that accused 3 was involved in the Darling robbery.
Aspeling identified him at the scene of
the robbery as being in the
BATSA truck. Clearly he associated himself fully with the robbery and
the abductions and he is found
guilty on counts 10, 11 and 12.
Count 13
[330] Accused 7 has already been found
guilty of the theft of the white
BMW
vehicle. According to Aspeling’s evidence accused 7 drove the same
vehicle during the Kinkelbos robbery, or at the very least,
a similar
vehicle. There is however no evidence linking accused 3 to the theft
of this vehicle or even that he had knowledge that
the vehicle was
stolen. I find that the State has not proved him to be a party to the
theft of the vehicle beyond reasonable doubt
and he is acquitted on
count 13.
Count 14
[331] Accused 3 has already been found
not guilty of the theft of this vehicle which was found on his
premises. In the result it is
not possible to found a conviction
against any other accused in respect of this vehicle. His acquittal
on count 14 is confirmed.
Counts 15, 16 and 17
[332] These
counts relate to the Kinkelbos robbery. Aspeling’s evidence
establishes that accused 3 was, together with him, the leading
figure
in the Kinkelbos robbery. It was accused 3 who initiated the plan of
cutting accused 1 and 2 out of the robbery. He issued
a variety of
instructions including those relating to the hiring of the truck, who
would pose as policemen and he remained in overall
contact with
Aspeling in the truck by cell phone whilst the robbery was taking
place at Kinkelbos. Accused 3 was clearly aware that
the robbery
would take place in the manner in which the previous two robberies
were conducted i.e. involving the stopping of the
BATSA truck on
false pretences and the kidnapping of the driver and assistant. The
State has succeeded in proving his guilt on these
counts and he is
found guilty on counts 15, 16 and 17.
ACCUSED NUMBER FOUR
Counts 4, 5 and 6
[333] Aspeling’s evidence
established in the case of each of the three robberies that accused
4’s role was to dress up in a police
uniform and to bring the BATSA
truck to a halt. Aspeling identified accused 4 as being on the scene
of the Rawsonville robbery and
it is clear that the latter was
instrumental in bringing the BATSA vehicle to a halt in furtherance
of the overall plan. He is accordingly
found guilty of counts 4, 5
and 6.
Count 8
[334] The State seeks no conviction
under this count and accused 4 is acquitted on count 8.
Count 9
[335] For the same reasons as those
furnished in relation to accused 3, accused 4 is acquitted on count
9.
Counts 10, 11 and 12
[336] These
counts relate to the Darling robbery where accused 4 played the same
role as he had in the Rawsonville robbery. Aspeling
identified
accused 4 as being on the scene of the robbery and patrolling the
area in a
Volkswagen Polo
with a flashing blue light, dressed in a police uniform. The State
has therefore established its case against accused 4 in this regard
and he is found guilty on counts 10, 11 and 12.
Count 13
[337] For the same reasons furnished
in respect of accused 3, accused 4 is acquitted on this count.
Count 14
[338] For the same reasons that apply
to accused 3, accused 4 is acquitted on this count.
Counts 15, 16 and 17
[339] Aspeling’s
evidence established that accused 4 again played the role of a
policeman in the original Kinkelbos robbery. There
is ample evidence
that accused 4 was in Port Elizabeth, having travelled up by bus, and
that he later received a share of the proceeds.
Accused 3 instructed
accused 4 and 6 to use a white
Golf
and act as police officers.
At the scene of the robbery Aspeling noticed the white
Golf
with the flashing blue
light. There is no reason to believe that accused 4 did not play his
customary role in this robbery in accordance
with the established
modus operandi
and accordingly he is found guilty on counts 15, 16 and 17.
ACCUSED NUMBER FIVE AND NINE
[340] For the reasons given earlier
both of these accused are acquitted on all counts.
ACCUSED NUMBER SIX
Count 8
[341] The
State seeks no conviction here and accused 6 is acquitted on this
count.
Count 9
[342] For the same reasons as apply to
accused 1 accused 6 is acquitted on count 9.
Counts 10 – 12
[343] Aspeling’s evidence
established that accused 6 was involved in the Darling robbery. He
testified that accused 6 was dressed
in a blue police uniform and was
at the scene of the robbery. Accordingly the State has established
that accused 6 associated himself
fully with the robbery and
kidnappings and he is found guilty on counts 10 to 12.
Count 13
[344] For the same reasons as those
applying to accused 3, accused 6 is acquitted on this count.
Count 14
[345] For the same reasons as those
applied to accused 3, accused 6 is acquitted on count 14.
Counts 15, 16 and 17
[346] Aspeling’s evidence
establishes that accused 6 was involved in the original Kinkelbos
robbery. He was instructed by accused
3, together with accused 4, to
dress and pose as a policeman and bring the BATSA vehicle to a halt.
At the scene of the robbery Aspeling
noticed the white
Golf
with a flashing blue light. There is no reason to believe that the
accused did not fulfil this role. He was fully involved in the
subsequent fetching of Aspeling from Frankfort, the attempts to
recover the stolen consignment and in sharing the proceeds of the
robbery. Accordingly accused 6 is found guilty on counts 15, 16 and
17.
Counts 21 and 22
[347] These counts relate to the
unlawful possession of Aspeling’s firearm and ammunition.
Aspeling’s evidence establishes that
accused 6 was indeed at the
scene of the Lenasia shootout and fired shots from a firearm. There
is however no evidence that he possessed
Aspeling’s firearm or the
ammunition relating thereto at any stage. If anything, he possessed
another firearm and ammunition but
the charge has not been framed in
this manner. Nor is there any proof that the ammunition which he did
use was 9mm ammunition. In
the result accused 6 is acquitted on
counts 21 and 22.
ACCUSED NUMBER SEVEN
Count 8
[348] Since the State seeks no
conviction in this regard accused seven is acquitted on count 8.
Count 9
[349] As set out above accused 7 is
found guilty on count 9.
Count s10, 11 and 12
[350] Aspeling’s
evidence establishes that accused 7 was involved in the Darling
robbery. He played a role in purchasing policeman
uniforms on the day
preceding the robbery. Although Aspeling did not identify accused 7
as specifically being at the scene of the
robbery he testified that
when the
Caravelle
returned
to the
Waterfront Suites
immediately after the robbery, accused 7 was one of the passengers.
The selfsame
Caravelle
was at the scene of the robbery. In the circumstances I am satisfied
that the State has proved accused 7’s involvement in the robbery
beyond reasonable doubt. In all probability accused 7 would have been
made aware beforehand that the driver and his assistant were
to be
removed from the scene of the robbery and therefore his guilt on
these counts is also proved by his involvement in the robbery
itself.
Accused 7 is accordingly found guilty on counts 10, 11 and 12.
Count 13
[351] As set out above accused 7 is
found guilty on this count.
Count 14
[352] For the same reasons as apply to
accused 3, accused 7 is found not guilty on this count.
Counts 15, 16 and 17
[353] Once
again Aspeling’s evidence establishes that accused 7 played a
leading role in the Kinkelbos robbery. Aspeling identified
accused 7
as being in the BATSA truck whilst the driver of the truck, Mr.
Bradley Dantu, himself testified that accused 7 was at
the scene of
the robbery and challenged him regarding the panic button which he
pressed.
[354] It follows then that the State
has established accused 7’s involvement both in the robbery and in
the customary kidnappings
which were part of the
modus
operandi
of the robberies.
Accused 7 is accordingly convicted on counts 15, 16 and 17.
ACCUSED NUMBER EIGHT
Counts 4, 5 and 6
[355] For the reasons already
discussed, accused 8 is acquitted on counts 4, 5 and 6 i.e. the
charges relating to the Rawsonville
robbery.
Count 8
[356] The State seeks no conviction
under this count and accused 8 is accordingly acquitted thereon.
Count 9
[357] For the same reasons as those
advanced in respect of accused 1, accused 8 is found not guilty on
this count.
Counts 10, 11 and 12
[358] Aspeling’s
evidence established that accused 8 was a participant in the Darling
robbery. Accused 8 drove in Aspeling’s truck
and directed him to
the scene of the robbery. After the cargo had been transferred from
the BATSA vehicle to Aspeling’s truck,
accused 8 accompanied him
back to the Waterfront Suites. The inescapable inference is that
accused 8 associated himself with the
robbery and the kidnappings.
Accordingly he is found guilty on counts 10, 11 and 12.
Count 13
[359] For the same reasons as those
advanced in respect of accused 3, accused 8 is acquitted on this
count.
Count 14
[360] For the same reasons as those
advanced in respect of accused 3, accused 8 is acquitted on count 14.
Counts 15, 16 and 17
[361] Aspeling’s evidence
establishes that accused 8 was a participant in the Kinkelbos
robbery. Aspeling identified accused 8 as
being at the scene of the
robbery and being in the BATSA truck. In the circumstances the State
has proved its case against accused
8 on these counts and he is
convicted of counts 15, 16 and 17.
ACCUSED NUMBER NINE
[362] For the reasons already
discussed, accused 9 is acquitted on all counts in this matter.
ACCUSED NUMBER TEN
[363] For the reasons advanced when
his circumstances were discussed accused 10 is acquitted on all
counts in this matter.
ACCUSED NUMBER ELEVEN
Counts 4, 10, 15 and 18
[364] Accused
11 was charged with robbery in relation to each of the four
robberies. For the reasons already discussed, Aspeling’s
evidence
in respect of accused 11’s involvement in the receipt and purchase
of the cigarettes has been accepted and accused 11’s
evidence
rejected as being not reasonably possibly true.
[365] There was no evidence that
accused 11 was aware of the circumstances in which his fellow accused
came to possess the consignments
of stolen cigarettes. However, given
the value and size of the consignments, those in the Rawsonville and
Darling robberies being
R826 000,00 and R735 000,00 odd,
respectively, he could not conceivably have been under the impression
that the cigarettes were lawfully
acquired. The only inference which
can be drawn is that accused 11 must have realised, at the very
least, that the consignments of
cigarettes had been stolen. Theft
being a continuing offence, our law draws no distinction between
perpetrators and accessories after
the fact. Therefore, a person who
after the commission of the theft assists the thief (who is still in
possession of the property)
to conceal the property does not qualify
as an accessory after the fact because his assistance is rendered at
the time when the original
crime (theft) is still uncompleted.
Accordingly accused 11 is, on the facts found, guilty of theft. See
R
v Brett and Levy
1915 TPD
page 53.
[366] As I have already discussed,
accused 11 is given the benefit of the doubt in relation to the
consignment of cigarettes emanating
from the Kinkelbos robbery, there
being no direct proof of their delivery to him or his premises. That
consignment forms the subject
matter of counts 15 and 18 and therefor
accused 11 must be and acquitted on these counts.
[367] On behalf of accused 11 it was
contended that he could not be found guilty of theft as a competent
verdict on the counts relating
to the robberies in the Western and
Eastern Cape. It was contended that this was because any such theft
took place at or near Lenasia,
outside the ordinary jurisdiction of
this Court, and because accused 11 had not “submitted to the
jurisdiction” of this Court
in respect of such verdicts.
[368] However, as was fully discussed
in the Court’s judgment relating to the challenge to the validity
of the prosecution, in terms
of s 111 of Act 51 of 1977, the Deputy
National Director of Public Prosecutions, Adv. JSM Henning SC, issued
a directive, annexure
“B”, that the criminal proceedings in this
matter be commenced within this Court’s jurisdiction. In that
directive all of the
charges are listed as is accused 11’s name,
together with the blanket statement that the offences were allegedly
committed “at
or near” Kinkelbos, Ennerdale and Lenasia in the
district of Soweto.
[369] It is common cause that accused
11’s business premises are situated in Lenasia. The directive
neither reads nor suggests that
the centralisation of charges within
the jurisdiction of this Court restricted itself to the main charges
and not to competent verdicts
thereon. Giving the directive a
purposive interpretation, it appears to me that this Court does
indeed have jurisdiction to find
accused 11 guilty on the competent
verdict of theft, committed in Lenasia, notwithstanding the fact that
the robberies took place
in the Western or the Eastern Cape.
[370] In the circumstances, based on
the acceptance of Aspeling’s evidence, accused 11 is convicted of
theft of the consignments
of cigarettes involved in the Rawsonville
and Darling robberies i.e. on counts 4 and 10. He is acquitted on
counts 15 and 18.
THE POCA CHARGES
[371] Counts 1, 2 and 23 to 25 were
all charges framed under the Prevention of Organised Crime Act, 121
of 1998 (the “Act”).
[372] Under count 1 the State charged
accused 1, 2 and 11 with managing the operations or activities of “an
Enterprise”, whilst
they knew or reasonably ought to have known
that other persons, namely accused 1 – 11, or other persons known
and unknown to the
State, whilst employed by or associated with that
enterprise, conducted or participated in the conduct of such
enterprises’ affairs
through a pattern of racketeering activities.
In the preamble to counts 1 and 2 the State averred that over the
relevant period accused
1 and 2 constituted the “enterprise”. It
alleged further that all the accused, during the commission of the
criminal activity,
had the intention of benefiting the enterprise and
the criminal activities were committed for the benefit of the
enterprise. Further,
the State alleged that the “pattern of
racketeering activity” was as set out in annexure “A”. In that
annexure all the counts
of which the accused were charged save counts
1 and 2 were cited, the preamble thereto reading “the planned,
ongoing, continuous
or repeated participation or involvement in the
following offences referred to in schedule 1 and all of which
occurred after the
commencement of the Act.” At the end of the
State case accused 11 was discharged on this count.
[373] In terms of count 2 all of the
accused were charged with contravening s 2(1)(e) of the Act that,
whilst managing or employed
by or associated with the enterprise,
they conducted or participated in the conduct directly or indirectly
of the enterprise’s
affairs through a pattern of racketeering
activity as described above.
[374] In terms of counts 23 to 25,
accused 1, 2 and 11 were charged with contravening s 4 of the Act in
that, after each of the three
robberies and whilst knowing that each
of the three consignments of cigarettes were the proceeds of unlawful
activities, they arranged
for the sale thereof to accused 11 on
behalf of the enterprise which arrangement or agreement “had the
effect of concealing or
disguising the nature, source, location,
disposition or movement of that property or the ownership thereof,
which property was acquired
as a result of the commission of an
offence”. On each of these three counts accused 11 alone was
charged with certain alternatives
in terms of s 5 and 6 of the Act,
the details whereof are unnecessary for me to set out.
[375] The long title of the Act states
its purpose
inter alia
as being “to introduce measures to combat organised crime, money
laundering and certain criminal gang activities”. In the Act’s
preamble there is reference to “a rapid growth of organised crime,
money laundering and criminal gang activities, nationally and
internationally…” which activity “present(s) a danger to public
order and safety and economic stability, and has the potential
to
inflict social damage”. It goes on to state that “South African
common law and statutory law fails to deal effectively with
organised
crime, money laundering and criminal gang activities” and also
fails “to keep pace with international measures aimed
at dealing
effectively” with such evils.
[376] Contraventions of s 2(1)(f) and
(e) fall under that chapter of the Act headed “offences related to
racketeering activities”.
Such activities are defined under “a
pattern of racketeering” activity as being “the planned, ongoing,
continuous or repeated
participation or involvement in any offence
referred to in Schedule 1 and it includes at least two offences
referred to in Schedule
1, of which one of the offences occurred
after the commencement of this Act and the last offence occurred
within ten years of the
commission of such prior offence referred to
in schedule 1”.
[377] All of the offences listed in
schedule “A” occurred after the commencement of the Act and
within a ten year period. Schedule
1 includes the offences of
robbery, kidnapping, attempted murder, theft, the unlawful possession
of firearms and any offence referred
to in chapter 4 of this Act i.e.
the so-called “money laundering” charges which are the subject of
counts 23 to 25.
[378] An “enterprise” is defined
as including “any individual, partnership, corporation, association
or other juristic person
or legal entity and any union or group of
individuals associated in fact, although not a juristic person or
legal entity”. Section
2(1) of POCA consists of seven subsections
containing prohibitions regarding racketeering activities. The first
three, (a) to (c),
concern property generated by the racketeering
enterprise and are not relevant to this matter. The next three
subsections, (d) to
(f), concern participation in the enterprise.
Counts 1 and 2 fall within these subsections. The final subsection,
(g), prohibiting
a conspiracy or attempt to violate the other
sections is also irrelevant to the present matter.
[379] It appears that in order to
prove a violation of either s 2(1)(f) or 2(1)(e) the relationship
between three things must be demonstrated:
the enterprise, the
pattern of racketeering activity and the accused person/s. Under both
sub-sections it must be shown that the
enterprise existed and that a
pattern of racketeering activity was committed by some person or
persons connected to the enterprise.
Under subsection (e) the accused
may have one of three types of relationships to the enterprise,
namely, management, employment or
association. The accused must have
this relationship, however, through his/her participation in the
pattern of racketeering activity.
On the other hand, under subsection
(f), the accused can have only one type of relationship to the
enterprise, namely management,
and the evidence must show that the
accused knew or reasonably should have known that the pattern of
racketeering activity was committed
by some other person/s.
[380] Thus, in order to prove count 1
the State must prove the following elements, namely, that:
an “enterprise” existed, and;
accused 1 and 2 managed the
operations or activities of the enterprise, and;
a “pattern of racketeering
activity” took place, and;
the accused knew or should reasonably
have known that a pattern of racketeering activity took place.
[381] It is no secret that the
Prevention of Organised Crime Act owes
much to its United States
counterpart, the Racketeering-Influenced and Corrupt Organisations
Act (RICO), 18 US CS § 1961. It follows
that the judgments of the
United States Supreme Court and subsidiary courts in that country may
be of some assistance in interpreting
some of the provisions and
concepts established by the Act.
[382]
In
United States v
Kragness
, 830F.2d 842,856
(8
th
Cir.1987)
the
following was stated with regard to the enterprise and the proof of
the existence thereof:
“
An
enterprise is established ‘by evidence of an ongoing organization,
formal or informal, and by evidence that the various associates
function as a continuing unit.’
Ibid.
The enterprise ‘is an entity separate and apart from the pattern of
(racketeering) activity in which it engages,’ ibid;
see also United
States v. Anderson,
626 F.2d 1358
, 1365 (8th Cir. 1980), cert.
denied,
450 U.S. 912
, 67 L. Ed. 2d 336,
101 S. Ct. 1351
(1981),
although the proof of these separate elements ‘may in particular
cases coalesce.’ Turkette, 452 U.S. at 583.”
“
Following
Turkette,
this Court in United States v. Bledsoe,
[1982] USCA8 178
;
674 F.2d 647
, 664-65 (8th
Cir.), cert. denied,
459 U.S. 1040
,
103 S. Ct. 456
, 74 L. Ed. 2d 608
(1982), identified three characteristics that distinguish a RICO
enterprise: First, there must be a common or shared
purpose that
animates the individuals associated with it. Second, it must be an
‘ongoing organization’ whose members ‘function
as a continuing
unit’, Turkette, 452 U.S. at 583; in other words, there must be
some continuity of structure and of personnel.
Third, there must be
an ascertainable structure distinct from that inherent in the conduct
of a pattern of racketeering activity.”
[383] In
Turkette’s
case the US Supreme Court rejected arguments that a “
completely
illegal organisation
”
such as the one concerned in
Kragness’s
case could not be a RICO
enterprise. However, the Court was careful to make clear that it is
not enough in the case of such an “
associational
enterprise
” simply to
establish a pattern of racketeering activity. Instead “
the
existence of an enterprise at all times remains a separate element
which must be proved by the Government
”.
[384] In my view Aspeling’s evidence
establishes that an enterprise did indeed exist. It involved an
association or group of persons
who regularly planned and committed
robberies of BATSA trucks carrying consignments of cigarettes.
Accused 1 and 2 were core members
of the group throughout although
all the accused and others were also part of the group or association
before and during at least
one of the robberies and in some cases,
two of them. In the case of each robbery the
modus
operandi
was the same,
namely, stopping the BATSA truck through the pretext of one or more
members of the enterprise disguising themselves
as policemen, driving
a white car with a blue light and flagging down the BATSA truck. Once
the BATSA truck was brought to a halt
the driver and his assistant
would be held up at gun point and the cargo transferred to a truck
especially brought down from Johannesburg
for this purpose. The
driver and his assistant would be removed from the scene of the
robbery in one of the enterprise’s vehicles.
Shortly after the
robbery the Johannesburg contingent of the enterprise, who came
mainly if not exclusively from Ennerdale, would
return to Gauteng
where the consignment would be sold to accused 11 and the proceeds
distributed amongst those of the Johannesburg
contingent and the Cape
Town contingent who had participated in the robbery. A portion of the
proceeds would be retained for “legal
and other expenses”.
[385] The distinct identity of the
enterprise
in casu
is evident from the fact that within four months the enterprise
either executed or had planned three robberies of BATSA vehicles.
When a break-away group executed the last robbery, that in Kinkelbos,
the enterprise reacted by taking steps to seize the consignment
of
cigarettes. Thereafter, when a common danger threatened in the form
of the police, the enterprise re-absorbed the offending members
and,
after negotiations, shared the proceeds of that robbery with them.
The continuity of the enterprise was also underlined by the
fact that
provision was made for the retention of certain of the proceeds to
cover future legal expenses. Had the accused not been
arrested it is
highly probable other similar robberies would have taken place.
Indeed it was Aspeling’s evidence that another robbery
in the
Eastern Cape, possibly East London, was discussed.
[386] Similarly the State has, in my
view, established that a “pattern of racketeering activity” took
place, this being constituted
by the various proved offences listed
in annexure “A”. These make up, in the main, the first two
robberies and associated kidnappings.
This pattern cannot, however,
encompass the proven car thefts for lack of proof of a linkage to the
robberies. Nor can it encompass
the initial Kinkelbos robbery for the
simple reason that it was not executed by “the enterprise”. On
Aspeling’s evidence the
first Kinkelbos robbery was committed by a
break-away group of members of the enterprise who deliberately sought
to exclude accused
1 and 2, the core members of the enterprise.
[387] The further requirement for a
conviction in terms of s 2(1)(f) is that the accused knew or should
reasonably have known that
a pattern of racketeering activity took
place. The State’s case against accused 1 and 2 is not only that
they knew of the pattern
of racketeering activities but that they
actively participated in it as well. This requirement is accordingly
met in relation to
accused 1 and 2.
[388] The first requirement for a
conviction under count 1 is that the accused must have managed the
operations or activities of the
enterprise.
The
Concise Oxford Dictionary
,
tenth edition, revised, Oxford University Press, defines “manage”
as being: “be in charge of”, “supervise (staff)”,
“administer
and regulate” or “maintain control or influence over (a person or
animal)”.
[389] From Aspeling’s evidence it is
clear that accused 1 was the person who managed the enterprise. By
the time the first robbery
commenced he was issuing instructions to
the various members of the enterprise concerning their roles and
responsibilities when the
robbery would take place and where the
consignment was to be taken for sale etc. He maintained this dominant
managerial role throughout
the second robbery, which he initiated.
Thereafter he initiated the scouting trip preparatory to the
commission of a third robbery.
When the break-away group excluded him
and accused 2 from that robbery, accused 1 reasserted his control by
overseeing the hijacking
and robbery of Aspeling. I am satisfied,
therefore, that the State has proved
vis
à vis
accused 1 the
elements of count 1.
[390] It did initially weigh with me
that, given the formulation of the charges namely that of counts 3 to
25 comprising the pattern
of racketeering activity taken together
with accused 1’s direct participation in the individual or
“predicate” counts, his
conviction both on the predicate offences
and count 1 might constitute a duplication of convictions.
[391] As has often been stated there
is no insoluble formula to determine accurately whether or not a
duplication of convictions has
occurred. Nor is it possible to
develop a single guiding principle that applies to all circumstances.
The result is that the question
of whether an accused’s criminal
conduct gives rise to one or more offences must be decided on the
basis of sound reasoning and
on the Court’s perception of fairness
(
R v Kuzwayo
1960
(1) SA 340
(A) at 344B and
S
v Davids
1998 (2) SACR 313
(C) at 316D. Tests which can be applied can be described as the
intention test and the evidence test. See also
S
v Mtsawakele
1982 (1) SA
325
(T) at 338 – 341. Applying the latter test it appears to me
that the elements of the racketeering offence constituted by s
2(1)(f)
of the Act differs significantly from those of the individual
predicate offences. An accused person could thus be convicted of all
the offences listed in annexure “A” but, for any number of
reasons, for example that he/she was merely a foot soldier, escape
conviction on a charge under s 2(1)(f) in which the “pattern of
racketeering activity” covered those selfsame offences.
[392] Having regard to the purpose of
Act as revealed both in its long title and its preamble, it seems to
me that the legislature
must have envisaged that in circumstances
such as those which exist in the present case, an accused person
could be found guilty
both of the substantive, predicate offences and
of managing, or participating in, the activities of the enterprise. I
am satisfied
then both that the State has established its case
against accused 1 on count 1 and that such a conviction will not
amount to a duplication
of convictions. He is duly convicted on count
1.
[393] The State contends that accused
2 also planned and organised the offences constituting the pattern of
racketeering activities
and that he was second in charge and conveyed
instructions given by accused 1 to the employees and supervised their
implementation.
The mere conveyance of instructions from a manager to
others through a third party does not, in my view, necessarily make
the middleman
a manager. The prime example of accused 2 playing a
more prominent role in the activities of the enterprise was when he,
together
with Denzil Boyles, took Aspeling to the
Formula
One Hotel
in Alberton and,
the following morning, to Comaro and thence to Frankfort. The
evidence suggests, however, that in doing so he was
acting on the
instructions of accused 1. The evidence further suggests that accused
2, although clearly much closer to accused 1
than any of the other
members, similarly, generally took instructions from him. Accused 2’s
closeness to accused 1 arises, no doubt,
both from the sibling
relationship and the fact that accused 1, as a paraplegic, was unable
to physically effect certain acts and
tended to delegate some of
these to his younger brother. It does not follow that accused 2 was,
on these grounds, a manager of the
enterprise. On an overall view I
consider that the State has failed to prove that accused 2 also
managed the affairs of the enterprise
and thus he must be acquitted
of contravening s 2(1)(f) of the Act. Accused 2 is therefore
acquitted on count 1.
COUNT 2
[394] In order to gain a conviction on
a charge of contravening s 2(1)(e) of the Act the State must prove
that the accused, whilst
managing or employed by or associated with
the enterprise, conducted or participated in the conduct, directly or
indirectly, of the
enterprise’s affairs through a pattern of
racketeering activity.
[395] The elements of the offence are
thus the existence of the enterprise, the management of, employment
by or association with the
enterprise, a pattern of racketeering
activity taking place and, finally, that the accused conducted or
participated, directly or
indirectly, in the affairs of the
enterprise through the pattern of racketeering activity.
Accused 1
:
[396] I
have found that the enterprise existed and that a pattern of
racketeering activity took place. In relation to accused 1 I
have
found, furthermore, that he managed the enterprise. The remaining
question is whether the accused conducted or participated,
directly
or indirectly, in the affairs of the enterprise through the pattern
of racketeering activity. To this the answer must be
positive since
the evidence reveals that the accused himself participated actively
and directly in the various robberies committed
on behalf of the
enterprise. On this basis he has been convicted,
inter
alia
, on the counts
relating to the Rawsonville and Darling robberies and the associated
kidnappings. However, once again, in the light
of the fact that the
accused has already been convicted both of contravening s 2(1)(f) and
these predicate offences, the question
arises whether an additional
conviction on count 2 may not constitute a duplication of
convictions.
[397] In my view there is no such
danger. In the first place, the phrase “whilst managing the
enterprise” in s 2(1)(e) clearly
indicates that, apart from the
criminal liability attaching for managing an enterprise, the
“manager” can also be criminally
liable where he or she
participates in the conduct of the enterprise’s affairs through a
pattern of racketeering activity. All
other things being equal,
furthermore, there appears to be no good reason why a person who both
manages and participates in the affairs
of the enterprise, directly
or indirectly, should only be criminally liable for one of the two
roles.
[398] Secondly,
in regard to a possible duplication of convictions in respect of the
predicate offences, as discussed above in relation
to s 2(1)(f), the
elements of the offence of contravening s 2(1)(e) are quite different
to those involved in the predicate offences
themselves. Again, in my
view, in creating the new statutory offences the legislature must
have foreseen that in given circumstances
an offender could be
convicted of both managing and participating in the affairs of an
enterprise through a pattern of racketeering
activity and of
committing the offences which make up the pattern of racketeering.
Through its sentencing discretion a Court will
be able to ameliorate
any possible sentencing anomalies which may arise.
[399] In the result I am satisfied
that the State has succeeded in proving a case against accused 1 on
count 2 and he is convicted
on such count.
Accused 2
:
[400] I
have found that accused 2 did not manage the affairs of the
enterprise but, on the basis of Aspeling’s evidence, there can
be
no doubt that accused 2 was closely associated with the enterprise.
He participated directly in the affairs of the enterprise
inter
alia
through his
involvement in the Rawsonville and Darling robberies which are listed
in annexure “A”. Accused 2 is consequently
found guilty on count
2.
Accused 3
:
[401] Accused
3 was convicted on the counts arising out of the Rawsonville and
Darling robberies and was, on the evidence, an integral
member of the
enterprise for most of the period of its existence. In the
circumstances his conviction on count 2 must follow.
Accused 4
:
[402] Accused
4 was similarly convicted,
inter
alia
, in relation to the
first two robberies and was a member of the enterprise for most of
its existence. He too is convicted on count
2.
Accused 6
:
[403] Accused
6 was convicted of the counts relating to the Darling robbery which
included the associated kidnappings and the first
Kinkelbos robbery
and associated kidnappings. Accused 6 was clearly “associated with”
the enterprise as is demonstrated by his
full role in the Darling
robbery. However, the question is whether his aforesaid participation
in the two robberies constitutes participation
in the conduct,
directly or indirectly, of the enterprise’s affairs through a
pattern of racketeering activity. Such a pattern
requires “the
planned, ongoing, continuous or repeated participation or involvement
in any of the offences referred to in Schedule
1…”. The evidence
is, however, that the enterprise, if such it be, which carried out
the first Kinkelbos robbery was not the
same enterprise which carried
out the Rawsonville and Darling robberies. Accepting the State’s
case that the core of the enterprise
was accused 1 and 2, when
accused 3 and Aspeling,
inter
alia
, cut accused 1 and 2
out of the robbery planned in respect of BATSA in Port Elizabeth they
effectively excluded the enterprise from
that criminal conduct. As a
result the State cannot rely on counts 15 to 17 as forming part of
the pattern of racketeering activity
upon which it can rely in this
prosecution.
[404] In the circumstances the only
conduct on which the State can rely in seeking a conviction in terms
of count 2 against accused
6 is the Darling robbery. Although that
robbery involved, on accused 6’s part, his involvement in and
conviction on three separate
Schedule 1 offences, namely robbery and
two counts of kidnapping, in my view such conduct does not satisfy
the requirement for a
“pattern of racketeering activity”. The
three offences were committed virtually simultaneously and cannot be
said to constitute
“planned, ongoing, continuous or repeated
participation or involvement” in any offence referred to in
Schedule 1. Accused 6 is,
therefore, acquitted on count 2.
Accused 7
:
[405] Accused
7 was similarly found guilty of participation in the Darling and in
the first Kinkelbos robbery. In addition he has
been found guilty on
two counts of car theft i.e. counts 9 and 13. For the same reasons as
apply to accused 6, his involvement in
the Kinkelbos robbery cannot
be used in securing a conviction against him under count 2. Nor can
the car theft convictions be taken
into account since I have found
that the State failed to prove that his theft of the motor vehicles
constituted participation in
the conduct, directly or indirectly, of
the enterprise’s affairs. Put differently, the evidence does not
exclude the reasonable
possibility that, in stealing the vehicles,
accused 7 was acting in his own interests alone. Accused 7 is
therefor acquitted on count
2.
Accused 8
:
[406] Accused
8 was acquitted on charges arising out of the Rawsonville robbery but
convicted on charges arising out of the Darling
and Kinkelbos
robberies. For the same reasons which apply to accused 6, therefore,
the State has failed to establish his guilt on
count 2 and he is
acquitted on this count.
Accused 11
:
[407] The
questions which arise in relation to accused 11 under this count are
firstly, whether he was employed by or associated with
the enterprise
and, secondly, whether he conducted or participated, directly or
indirectly in the affairs of the enterprise through
the pattern of
racketeering activity.
[408] Accused 11 has been found guilty
on two counts of theft relating to his receipt and purchase of the
consignments of cigarettes
stolen in the Rawsonville and Darling
robberies. These two acts satisfy the requirement for a “pattern of
racketeering” in that
they are offences listed in Schedule 1 of the
Act and occurred within the stipulated timeframe. The sale of the
cigarettes was a
key element in the affairs of the enterprise whereby
the proceeds of the robbery were converted into cash and distributed
amongst
the enterprise’s members. In this stage of the enterprise’s
affairs accused 11 played a critical role, namely, that of purchasing
the cigarettes, quickly, for cash and, presumably, selling them on.
In my view accused 11, through such conduct participated directly
in
the affairs of the enterprise, thereby satisfying the second
requirement. This conclusion does not take into account the charges
of money laundering against accused 11. If convicted on those counts
his participation in the “pattern of racketeering activity”
is
enhanced.
[409] What remains is the question of
whether accused 11 was employed by or associated with the enterprise,
bearing in mind that he
did not manage the enterprise. Clearly there
is no evidence that the accused was employed by the enterprise in the
sense that he
was on its payroll. The concept of association is a
wide one and is not limited by the Act.
The
Concise Oxford English Dictionary
gives the meaning of association as
inter
alia
to “
meet
or have dealings, allow oneself to be connected with or seen to be
supportive of, be involved with
”.
In my view it is not necessary for the State, in order to secure a
conviction against accused 11 to prove that he was part of
the
enterprise in some more formal or direct sense than is conveyed by
the broad concept of “association”. Nor do I regard it
as
necessary to prove that persons “associated with” the enterprise
knew about all its activities. In my view it is sufficient
that the
accused knows the general nature of the enterprise and that it
extends beyond his individual role. See
United
States v Rastelli
, 870F. 2d
822 827 – 28 (Second Circuit 1989).
[410] In accused 11’s case he was
approached on three separate occasions in a period of approximately
three-and-a-half months by
accused 2 to purchase a very large
consignment of cigarettes. On two occasions accused 2 was accompanied
by Aspeling. On the first
occasion accused 3 was also present. I am
mindful that on the third occasion there is no direct proof that
accused 11 in fact received
the consignment and it is for this
reason,
inter alia
,
that he is acquitted on charges related to the third robbery. Even if
this evidence is left out of account, accused 11 was approached
on at
least two occasions to purchase a large consignment of cigarettes. He
must have realised, at the very least, that there was
a larger group
of persons involved in the operations necessary to steal from or rob
a third party of such large quantities of cigarettes.
In my view such
knowledge, together with accused 11’s own participation in
purchasing the consignments, is sufficient to meet the
requirements
of “association with” the enterprise and his participation in the
affairs of the enterprise “directly or indirectly”
through a
pattern of racketeering activities. Accordingly I am satisfied that
the State has proved its case against accused 11 on
this count and he
is found guilty on count 2.
COUNTS 23, 24 AND 25
[411] Under these counts accused 1, 2
and 11 were charged with contravening s 4 of the Act in relation to
the consignments of cigarettes
stolen in the Rawsonville, Darling and
Kinkelbos robberies. It is alleged that the accused knew or ought
reasonably to have known
that the boxes of cigarettes were the
proceeds of unlawful activity, or formed part thereof, but
nevertheless agreed and arranged
that accused 1 and 2 would sell such
consignments to accused 11 “for and on behalf of the enterprise”.
It is further alleged
that this agreement had the effect of
“concealing or disguising the nature, source, location, disposition
or movement of that property
or the ownership thereof”.
[412] The offence created by s 4
appears in Chapter 3 of the Act under the heading “Offences
Relating to Proceeds of Unlawful Activities”
and is termed “money
laundering”. This term appears to be a misnomer, however, since the
section criminalises conduct going far
beyond concealing or
disguising the source of money or currency alone which forms the
proceeds or part of the proceeds of unlawful
activities. The elements
of the offence are knowledge, actual or imputed, property which forms
part of the proceeds of unlawful activity;
the conclusion of an
agreement or arrangement in connection with that property; the
performance of any act in that regard which has
or is likely to have
the effect of “concealing or disguising the nature, source,
location, disposition or movement of the said
property or the
ownership thereof or enabling any person who has committed an offence
to avoid” prosecution or remove or diminish
the property acquired
as a result of the commission of such offence.
[413] The “proceeds of unlawful
activities” is defined in the Act as meaning:
“
any
property or any service, advantage, benefit or reward which was
derived, received or retained, directly or indirectly, in the
Republic or elsewhere at any time before or after the commencement of
this Act in connection or as a result of any unlawful activity
carried on by any persons …”
.
[414] “Property” is defined as
meaning:
“
money
or any other movable, immovable, corporeal or incorporeal thing and
includes any rights, privileges, claims and securities and
any
interest therein and all proceeds thereof“.
[415] “Unlawful activity” means:
“
conduct
which constitutes a crime or which contravenes any law whether such
conduct occurred before or after the commencement of this
Act and
whether such conduct occurred in the Republic or elsewhere”
.
[416] Finally, s 1(2) provides that:
“
For
purposes of this Act a person has knowledge of a fact if –
the person has
actual knowledge of that fact; or
the Court is
satisfied that –
the person
believes that there is a reasonable possibility of the existence of
that fact; and
he/she fails to
obtain information to confirm the existence of that fact…”
.
Subsection (3) provides:
“
For
the purposes of this Act a person ought reasonably to have known or
suspected a fact if the conclusion that he/she ought to have
reached
are those which would have been reached by a reasonably diligent and
vigilant person having both…………. –
the general
knowledge, skill, training and experience that may reasonably have
been expected of a person in his/her position; and
the general
knowledge, skill, training and experience that he/she in fact has.”
Accused 1 and 2
:
[417] On the basis of Aspeling’s
evidence, it is clear that both accused 1 and 2 knew that the
property referred to in counts 23
to 25, the boxes of cigarettes,
were the proceeds of unlawful activity. The evidence establishes
further that they entered into an
agreement or an arrangement with
accused 11 to sell the consignments of cigarettes to him for cash.
Aspeling’s evidence was that
accused 1 directed that the cigarettes
would be sold to accused 11 and deputed accused 2 and Aspeling to
physically deliver the cigarettes
to accused 11. In the cases of the
Rawsonville and Darling consignments they also took delivery of the
first tranche of monies forming
part of the purchase price and used
them to pay the amounts outstanding to
Bera’s
Transport
in regard to the
hire of the truck. The effect of the agreement or arrangement to sell
the consignments to accused 11 was to conceal
or disguise “the
source, location, disposition or movement of the boxes of cigarettes
and the ownership thereof”. Selling the
cigarettes to a wholesaler
with his capacity to dispose of them to a variety of sources
relatively quickly, had twin benefits. Firstly,
it converted the
goods into cash for immediate consumption by accused 1 and 2 and
other members of the enterprise. Secondly, it disposed
of the stolen
goods which might otherwise have implicated the accused in the
commission of the robberies. The arrangement or agreement
also had
the effect of assisting the accused in avoiding prosecution and in
removing or diminishing the property acquired as a result
of the
commission of the robberies.
[418] Aspeling’s evidence suggests
that the actual agreement with accused 11 was entered into by accused
1 although he, Aspeling,
was not a direct party to the discussion
between accused 1 and accused 11. That lack of direct evidence does
not assist either accused
1 or accused 2 because, on Aspeling’s
evidence, both of them either entered into the agreement or performed
an action in connection
with such property which had the necessary
effect. Such action would be either the delivery of the cigarettes by
accused 2 or, in
the case of accused 1, reaching the agreement with
accused 11 and/or deputing accused 2 and Aspeling to effect the
delivery of the
cigarettes to accused 11.
[419] It has earlier been found, in
relation to accused 11, that the State failed to prove, beyond
reasonable doubt, that he received
the consignment of cigarettes
stolen in the Kinkelbos robbery. Logically that finding must enure to
the benefit of the accused charged
with count 25. Proof of that
charge involves proof of an arrangement or agreement between accused
1, 2 and 11 for the sale of those
cigarettes. Given the lack of
evidence regarding what happened to the consignment of cigarettes
stolen in the Kinkelbos robbery,
accused 1 and 2 are given the
benefit of the doubt and acquitted on count 25. They are found guilty
on counts 23 and 24.
Accused 11
:
[420] On
the basis of the reasoning employed in convicting accused 11 of theft
in relation to the proceeds of the Rawsonville and
Darling robberies,
the State has gone a long way towards proving the commission of the
offences in terms of s 4 of the Act against
accused 11. If accused 11
did not know that the first two consignments of cigarettes were the
proceeds of unlawful activity he “ought
reasonably to have known”
so. In my view it is utterly unlikely that accused 11 did not realise
that the very large and valuable
consignments of cigarettes being
sold and brought to him by accused 2 and Aspeling had either been
stolen or robbed from some third
party. His conduct in agreeing to
purchase the cigarettes had the effect of concealing or disguising
the source, disposition or movement
of the said property or the
ownership thereof and, the further effect of assisting accused 2,
Aspeling and other members of the enterprise
to avoid prosecution.
[421] It follows that accused 11 must
also be given the benefit of the doubt in relation to the third
consignment of cigarettes and
he is therefore acquitted on count 25.
He is, however, found guilty on counts 23 and 24.
[422] Finally, I record that the
judgment of the Court herein is unanimous.
CONCLUSION
[423] In summary the accused are
convicted and acquitted on the following counts:
Accused 5, 9 and 10
:
[424] Accused 5, 9 and 10 are
acquitted of all remaining counts against them.
Accused 1
:
[425] Accused 1 is found guilty of
counts 1, 2, 4, 5, 6,10, 11, 12, 18, 19, 20, 21, 22, 23 and 24.
[426] He
is found not guilty on counts 8, 9, 15 and 25.
Accused 2
:
[427] Accused
2 is found guilty on counts 2, 4, 5, 6, 10, 11, 12, 18, 19, 21, 22,
23 and 24.
[428] He
is acquitted on counts 1, 8, 9, 15 and 25.
Accused 3
:
[429] Accused
3 is found guilty on counts 2, 4, 5, 6, 10, 11, 12, 15, 16 and 17.
[430] He
is acquitted on counts 8, 9, 13 and 14.
Accused 4
:
[431] Accused
4 is found guilty on counts 2, 4, 5, 6, 10, 11, 12, 15, 16 and 17.
[432] He
is acquitted on counts 8, 9, 13 and 14.
Accused 6
:
[433] Accused
6 is found guilty on counts 10, 11, 12, 15, 16 and 17.
[434] He
is acquitted on counts 2, 8, 9, 13, 14, 21 and 22.
Accused 7
:
[435] Accused
7 is found guilty on counts 9, 10, 11, 12, 13, 15, 16 and 17.
[436] He
is acquitted on counts 2, 8 and 14.
Accused 8
:
[437] Accused
8 is found guilty on counts 10, 11, 12, 15, 16 and 17.
[438] He
is acquitted on counts 2, 4, 5, 6, 8, 9, 13 and 14.
Accused
11
:
[439] On
counts 4 and 10 accused 11 is found guilty of theft. He is also found
guilty on count 2 and counts 23 and 24, in the latter
two instances
in terms of the main charge.
[440] He
is found not guilty on counts 15, 18 and 25.
_________________
LJ BOZALEK, J