S v Monco and Others (25/2018) [2024] ZAECMHC 80 (17 May 2024)

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[2024] ZAECMHC 80
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S v Monco and Others (25/2018) [2024] ZAECMHC 80 (17 May 2024)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION: MTHATHA
CASE
NO. :  25/2018
In
the matter between:
THE
STATE
vs
1.
ANDANI MONCO
2.
KWANELE NDLWANA
3.
SIPHOSOMZI TSHEFU
4.
…………………………
.
5.
PHUMZILE MHLATYWA
JUDGMENT
GRIFFITHS,
J. :
[1]
The accused in this matter have been charged with 22 separate counts
of conspiracy
and contravention of section 29 of Act 9 of 1983, 5
counts of murder, 2 counts of attempted murder, 9 counts of robbery
with aggravating
circumstances, one count of housebreaking with
intent to commit an offence, possession of a firearm with intent to
commit an offence
and unlawful possession of a firearm and
ammunition. Counts 1 and 2 which deal with robberies in Butterworth
and Cala on 21 November
2017 and 5 December 2017 respectively, relate
only to accused 2 and 3, whilst the rest of the charges relate to all
the  accused.
The accused elected, despite being aware of their
constitutional rights, not to employ legal representation and opted
to defend
themselves.
[2]
All five accused then before the court pleaded not guilty to all the
charges levelled
against them. In terms of section 115 of the
Criminal Procedure Act (No. 51 of 1977 – hereinafter referred
to as “the
Act”) they indicated that they had nothing
whatsoever to do with all the offences and that they had not been
present when
the offences had been committed.
[3]
It is important to note that the charges in this matter relate to
occurrences in several
different areas, namely Butterworth, Cala, the
area near Nyanga School near Ngcobo, Ngcobo Police Station, the area
near the banks
in Ngcobo and what has become known as the Mancoba
Compound, near Ngcobo. Because this trial has spanned many years and
this court
has heard the evidence of numerous witnesses, I do not
intend to summarize the evidence in minute detail and will only
concentrate
on the evidence which I deem relevant to the charges. To
ensure that the narrative of the judgment makes sense and remains in
in
some form of logical sequence, I intend to deal with the evidence
of the occurrences themselves and the evidence implicating the

accused, and thereafter to deal briefly with the forensic evidence
insofar as it may be relevant. During the trial various applications

were made by the accused and the state and on each occasion full
ex
tempore
reasons were given for the ruling made. In addition,
during the hearing the trial of accused four was separated from those
of the
other accused. I shall accordingly deal only with the evidence
pertinent to the cases of the remaining accused.
[4]
Two witnesses testified as to the events which occurred relating to
count one, these
being
Warrant Officer Qwaqwa
and
Constable
Sodladla
. Qwaqwa was in Butterworth directing traffic after his
vehicle had refused to start and had stopped in the middle of the
road.
As he was doing so, he was attacked by a group of young men
whom he estimated to be 5 or 6 in number. He was summarily thrown to

the ground by these men, one of whom was wearing a maroon shirt with
white dots and one of whom was light in complexion. One of
them had
shouted the word “firearm” and he had automatically
attempted to protect his service firearm which was holstered
at his
side. One of them threatened him with an okapi knife causing him to
cease such resistance. His firearm, a police issue Z88
firearm with
serial number T[…], was taken from him and the cord by which
it was attached to his belt, was cut. They then
ran away. As he got
up, he heard more than 3 gunshots coming from the direction of the
Butterworth River. These young men had run
in that direction, towards
the Local Superspar.
Sodladla
had arrived by that stage and was assessing the situation. He was
alone and had noticed a group of people gathering at
the spot where
he had been told to collect Qwaqwa. He had approached the crowd which
appeared to be dispersing as a consequence
of the shooting and
noticed Qwaqwa on the ground wrestling with a young man. Thereafter
he heard more gunshots and saw 2 separate
groups of young men running
away in the direction of the Butterworth River. These men had turned
and seen him and had started firing
at him. The group ran behind the
Superspar wall and then ran away. He assisted Qwaqwa who had been
injured on his elbow and was
bleeding. He took him back to the police
station after which he had joined a group who had sought to find the
suspects.
[5]
A security guard, one
Dyoli
, and
Constable Sulundwane
testified with regard to count 2. Dyoli had been checking people out
of the business where she worked at the local Build It. She
noticed
the complainant on count 2, Sulundwane, at the cashier. A young man
attempted to pull the gun out of her holster whilst
another jumped in
front and pointed a handheld firearm at her. They managed to take her
firearm and flee. She ran out after them
and raised the alarm. It
emerged under cross-examination that there were CCTV cameras in the
shop which recorded video footage
of the event. Her evidence was
supported by the complainant, Sulundwane, who testified that the
firearm stolen from her was a 9
mm pistol with serial number H[…].
She also confirmed that it had appeared on a list later shown to her
by a certain captain.
[6]
The state next led the evidence of one
Memani
, a data capturer
at Ngcobo police station. During the course of her evidence an
inspection in loco was held at the police station,
the results of
which were read into the record. During the evening of 20 - 21
February 2018 she was on duty together with Constable
Sandlana (a
male), Constable Ngqambiya (a male), Sergeant Limane (a female),
Constable Ntsheku (a male), Constable Ntyeku (a female),
Constable
Nyikisa (a female), Constable Mateta (a male), Constable Pongco (a
male) and warrant officer Mbini (a male).
[7]
After reporting for duty Mbini posted Ntyeku and Mateta together for
patrol duties.
He also posted Ngqambiya and Sandlana in a separate
van, also for patrol duties. Limane, Nyikisa, Mateta and Pongco
remained on
duty in the charge office under the command of Mbini.
[8]
At some stage Memani had entered the charge office to verify some
information and
had noticed a lady in a wheelchair who appeared to be
under the influence of alcohol, in the public area. Thereafter she
went back
to her office. At about 23H12 she was back in the charge
office talking to Mbini when she heard him say “There they are,
they have arrived”. This was the basis of a private joke
between the group on duty but immediately after that she noticed
some
men wearing face masks standing on the porch outside the main door.
They were pointing firearms at the police. One of these
firearms was
R5 rifle and they all appeared to be male persons. She heard a single
shot whereafter the door was opened. She immediately
took cover
behind the counter and then heard a continuous firing of shots. She
saw Mbini falling. These men then jumped over the
counter and two of
them dragged her out. At this stage she noticed that Mbini and had
sustained a head wound and was dead.
[9]
She was asked as to the whereabouts of the firearms. She noticed
Pongco lying in a
pool of blood, also deceased. He had a wound on the
left side of his head, between the eye and the ear. At this stage she
noticed
another young man rushing in and kicking the deceased Pongco.
He held a pistol. She was then slapped and again asked where the
firearms were.
[10]
As a consequence of this she took them into an office where there
were two safes, in which the
firearms were stored. They were
aggressive and in a rush throughout this period. The office was dark,
and she turned the lights
on. She noticed Constable Nyikisa hiding in
the corner. She found the keys and was ordered to open the safe. She
attempted to do
so unsuccessfully. Consequently, they became even
more aggressive towards her. She was told to go and find the officer.
She left
that office and went to the office in which she usually
worked. Therein she found Constable Ntyeku and Sergeant Limane who
were
hiding under a table. The attackers demanded firearms from both
Limane and Ntyeku. They then went back to the original office where

the safes were housed and someone took the keys from her and opened
the safe. They took firearms out of the safe. She was
able to
see that these firearms were rifles. These men took these firearms
with them.
[11]
They were then ordered out of the police station and into a police
bakkie situated near the gate.
On the way she noticed the lady in the
wheelchair, sitting to the left of the porch. She also saw a 2
nd
group of young men pointing firearms at them who were told not to
shoot them by members of the 1
st
group. Whilst in the
bakkie, Sergeant Limane was forced to hand over his cell phone.
Ultimately, they were released from the bakkie
by Constable
Ngqambiya. They ran away and hid at the back of the police station
after they had heard more shooting. During all
this, she had noticed
that the men had worn grey overalls. One of them had worn a
balaclava. They were also wearing gloves.
[12]
Constable Nyikisa
also testified as to her role. She largely
confirmed the evidence of Memani as to the fact that she had been
hiding in the office
where the safes were housed after the shooting.
One of the men had, with the assistance of another, ripped her
firearm from the
holster on her waist by cutting the cord to which it
was attached. It had had a magazine with 15 rounds in it and its
serial number
was Q[…]. She confirmed that 2 rifles and 2
shotguns had been stolen together with full magazines for the rifles,
each of
which carried a maximum of approximately 35 rounds. She also
testified that the van into which they were driven was the police van

which had been used by Sandlana and Ngqambiya for patrolling earlier
in the evening. When Ngqambiya had opened the van to release
them, he
had informed them that Sandlana had been shot and that he had also
been shot at.
[13]
She also confirmed that Ntyeku, Sandlana, Ngqambiya and Ntyeka
carried service pistols whilst
Mateta had been in possession of a
rifle. The service pistols were retained by the police officers, but
the rifle had to be handed
in at the end of each shift.
[14]
Sergeant Limane
likewise confirmed the evidence of Memani and
Nyikisa. From her the robbers stole her service pistol (with serial
number Q[…]),
15 rounds of ammunition and a Nokia cell phone.
She also confirmed that two R5 rifles and two shotguns were taken out
of the safe
and stolen. She was unable to indicate what the serial
numbers of the rifles and shotguns were.
Constable Ntyeku
also
largely confirmed this evidence.
[15]
Constable Ngqambiya
confirmed that he had also been on duty
that night on patrol with Constable Sandlana. They were in a marked
police van. At some
stage they returned to the police station and
immediately heard gunshots. Thereafter he noticed people approaching
the van from
the front and shots were fired at them. He reclined in
the seat but noticed that Sandlana, who had been driving the vehicle,
had
been shot and killed. He said that there were approximately 7 to
8 people shooting at them and the shots mainly emanated from an
R5
rifle. He was also struck by 3 bullets but, fortunately for him, his
life was saved largely by the fact that he was wearing
a bullet proof
vest. A short while thereafter the canopy door of the bakkie was
opened and people were loaded into it. A man appeared
on the driver’s
side of the vehicle and ripped Sandlana’s firearm away from
him. It was a Z 88 pistol. Thereafter someone
opened his door and
ripped his firearm from him which was likewise a Z 88 pistol with 15
rounds of ammunition. The serial number
was P[…]. A short
while later the canopy door was again opened, and he heard someone
demanding cell phones. He then heard
a vehicle driving away.
[16]
After waiting a short while he opened the door at the back and let
all the women police officers
together with Memani out. He also saw
the old woman sitting near the charge office in a wheelchair. They
had attempted to escape
in Limane’s vehicle, but the shooting
had started again, and they had run away. He had tried to contact the
station commander
by cell phone. They had ultimately escaped and gone
to the hospital. He had suffered 3 gunshot wounds, one at his upper
right neck,
one at his lower back and one on his right upper chest.
They were not too serious, and he wasn’t detained for long in
hospital.
[17]
Captain Sopete
had received information about the ongoing
attack on the police station. On arrival, he had found Sandlana’s
stationary bakkie
with the deceased inside. He had assisted and had
been informed that there was a second vehicle that had been out on
patrol. He
had contacted Police Control at number 10111 who had
provided him with the tracking information from that vehicle. This
indicated
that the vehicle had turned off the R61 and was stationary
some distance from it. Its engine was still running. He and Sergeant

Sokopase had travelled to the place so indicated and had found the
vehicle in a quarry with its engine running and its lights still
on.
It appeared that it had been pushed into the quarry and had run down
the steep bank on its own. It was badly damaged from striking
rocks
in the quarry. He however found no one in, or in the vicinity of, the
vehicle.
[18]
On their return, upon joining the R61, he came across a woman who
appeared to be in distress.
She directed them back along the R 61 in
the direction of Mthatha. Near Nyanga school, they found the police
officers lying on
the side of the road. On examining them, he
realized that they had both been shot and were lying on the yellow
line. It appeared
that they had been dragged for some distance as
their blood had been smeared along the road. Both were dead. They
were in uniform,
and both of their firearms had been taken leaving
them with empty holsters. He accordingly contacted the hastily set up
Joint Operations
Committee (“JOC”) and reported. An
investigation team was sent.
[19]
Constable Njobe
and
warrant officer Simoyi
both
testified with regard to count 17. On 21 February 2018 they had both
been alerted to the fact of the attack on the Ngcobo
police station
by their station commander at Dalasile police station. They had been
together in the same vehicle patrolling when
they had noticed a
police vehicle parked near to FNB bank, in Ngcobo. At some stage,
whilst they were parked outside in the magistrates’
court,
people started firing at them from the van. They tried to escape by
hiding behind a certain container which lay near the
magistrates’
court and by ultimately entering the magistrates’ court
precincts. At some stage shots had been fired
from a group of people
who were near to the Capitec bank premises. The shots had emanated
from both rifles and pistols. Warrant
officer Simoyi had returned
fire. When the firing had eventually stopped, he noticed that the
police van and other vehicles that
these people were using, had
headed off in the direction of Cofimvaba. Thereafter they had gone to
assist at the police station.
[20]
Constable Mjoli thereafter left with certain other police officers to
search for two members
that were still missing. They had been
informed that they might be in a location called Masonwabe location
near to Ngcobo, where
the police van had apparently been noticed. On
going there, they were directed to a certain cliffside where they
noticed a vehicle
had been driven off. On following the vehicle’s
tracks, they eventually found the police van in damaged condition
amongst
some bushes. Whilst doing this, they received a call that
they should go to a certain school in in Ngcobo, which they did. On
arrival
they found the two missing police officers who were deceased.
They appeared to have been dragged from the middle of the road as

there were slicks of blood which indicated this. They also found
three empty pistol cartridges.
[21]
Neither Constable Njobe or warrant officer Simoyi sustained any
injuries.
[22]
Lwandiso Poswa
testified that he knew all the accused as they
were members of the church of one Mr. Mancoba, who has since passed
on. They all
lived on the church premises. On 21 February 2018 he had
gone for a jog along a road and on his return had come across a group
of people in the vicinity of two deceased police officers who were
lying close to the road. On his return to the Mancoba compound,
he
had found a group of people. One of them, by the name of Xolisa, had
asked him what was happening on the tar road, and he had
described
what he had seen. On entering the house, he had seen a report on
television to the effect that other people had been
killed in the
village of Ngcobo. Xolisa had also seen the TV report.
[23]
Back outside, Xolisa had called on the other young men in the house
to come out. He had then
asked “who had done that thing”
(referring to what they had seen on television). One person ,whose
name was Thandazile,
responded by saying that it was him. Xolisa had
then asked who else had left together with Thandazile and one Duva
had moved to
join Thandazile. Thereafter one Siyasanga together with
accused 1, accused 2, accused 3 and the erstwhile accused 4 had all
joined
Thandazile’s group. In his view, the accused were all in
their sound and sober senses at that time. He also testified that

since then Duva (whose surname was Mhlatwya, and who was accused 5’s
elder brother), Siyasanga, Thandazile and Xolisa were
all killed a
few days later on 23 February 2018, when they were shot during a
police raid on the church premises.
[24]
At about 15h00 that day he had noticed someone digging on the nearby
hillside. This person had
been chased by Duva. A short while later
Thandazile had spoken on the phone to one Anele to whose house this
person had been chased.
Thandazile had demanded his things. Shortly
thereafter, Anele arrived carrying a lightly coloured lumber jacket
in which was wrapped
2 pistols. These were handed to Thandazile who
placed them at the front side of his waist.
[25]
He further testified that accused three has the nickname “Gusha”.
Thandazile also
had a nickname “Chester”. Thandazile and
Xolisa had the same surname, “Mancoba”. Thandazile,
Xolixa and
one Philile were all brothers.
[26]
During the evening of 20 February 2018, he had seen accused one who
lived in the same structure
as him, but in a separate room. Accused
one had left at about 22h30. He had however not seen accused one
exiting the house. He
had also shared a room with accused two and a
number of others. He also testified that accused 1 and 5 had driver’s
licenses,
whilst accused 2, 3 and the erstwhile accused 4 did not.
[27]
Sometime before 21 February 2018, Thandazile, Duva, Siyasanga (also
known as “Rigo”),
accused 1, accused 2, accused 3 and the
erstwhile accused 4 had all travelled to Cape Town for reasons that
he was not privy to.
[28]
Thandazile and accused 1, 2, 3 and erstwhile accused 4 were very
close to each other. These accused
had apparently acted in a very
subservient manner towards Thandazile in the sense that, as he said,
they “were like servants”
to Thandazile. He had never
quarrelled with any of the accused. He, that is this witness, is
younger than accused 1 and 3 whilst
he is older than accused 2 and
erstwhile accused 4.
[29]
He also testified that the church premises are about 30 minutes’
drive from the  Ngcobo
police station, in the direction of
Mthatha.
[30]
Under cross examination by the accused it was put that they had not
been present when Thandazile
had, in effect, admitted to his
involvement in the occurrences of the night of 20 – 21 February
2018, and they denied having
been involved in the attack on the
police station. It also emerged that the community at the church
consisted of anything up to
100 persons, and that there was a
hierarchical system consisting of “masters” and
“servants”. The servants
were obliged to attend to all
the master’s needs and to follow their instructions. Reference
to “soldiers” by
certain other witnesses was actually a
reference to the persons that undertook the physical work for the
church community.
[31]
It further emerged that the church, in general, was unaware of the
actions of Thandazile in committing
these atrocities, as was Xolisa.
He was arrested after the firefight on 23 February 2018 and taken in
a Toyota Quantum to the police
station. During the course of this
trip, he was assaulted by way of a policeman slapping him in the face
and questioning him about
Thandazile. When he was at the police
station he made a statement to one Captain Sigcu. He had been
fearful when he made
the statement. When certain contradictions were
pointed out between his statement and his evidence in chief, he
stated that Captain
Sigcu had failed to hear him correctly.
[32]
He confirmed that, around the time that he had made his statement, he
had come across accused
2 about whom he said: “
When I got
close to you I felt pain as it appeared that you had been assaulted.
And you smelt of faeces
.”
[33]
He also confirmed that it was only Thandazile’s “servants”
who had moved to
stand next to Thandazile after having been
questioned by Xolisa.
[34]
Warrant Officer Mahlasela
, was the relief commander of Ngcobo
police station during the day of 20 February 2018. He testified with
regard to the contents
of the relevant OB book which indicated how he
had handed over the charge office contents to the succeeding relief
commander, namely
warrant officer Mbini. From that entry in the OB
book it was clear that he had handed over 3 rifles and 2 shotguns
with the serial
numbers:
Rifles:
8
[…]
; 8
[…]
;
3
[…]
.
Shotguns:
H
[…]
; H
[…]
[35]
Thus, according to this evidence, as at 18h00 on the evening of 20
February 2018 these firearms,
that is the two shotguns and the three
rifles, were in the safe at the Ngcobo police station.
[36]
The state then called certain witnesses to deal with the raid which
took place at the church
premises on 23 February 2018. These included
Warrant Officer Hlongwa and Sergeant Cebe
. From this evidence
it emerged that Sergeant Cebe had received information from an
informant relating to this matter which led
to the Mancoba church
premises. He had accordingly arranged for a special task force from
KZN to assist, together with members
of the specialized intervention
unit. He had, during the evening of 23 February 2020, briefed these
members with regard to the
mission at hand. He, together with the
members of the task force had travelled in a Toyota double cab, white
in colour, whilst
the SIU members had travelled in a Toyota Quantum.
The double cab had travelled in front. The intention was that the
task force
members would secure the shack dwellings whilst the SIU
would secure the houses at the compound. Neither of the vehicles were
marked.
[37]
On arrival they found that the gate was open as a vehicle had just
driven out and they accordingly
drove in and up the driveway to the
compound. He and the members of the task force had alighted and had
shouted to the people in
the compound that they were policemen and
that everyone should come out of their dwellings and lie down. Some
came out and were
told to lie down whilst others ran back inside and
others ran away. They heard people shouting from inside one of the
shacks saying
that they are police etc. A man came out of one of the
shack doors who was wearing a white shirt and was carrying a pistol.
He
fired a shot in the direction where Hlongwa had been standing.
Hlongwa retaliated by firing a shot from his R5 rifle and this person

moved back inside. Thereafter they heard someone inside the shack
shouting “fire, there are police, fire”.
[38]
Thereafter there was an exchange of fire between the residents of the
shacks and the task force
members. During this crossfire Hlongwa was
struck in both his legs and had to ultimately be taken to hospital.
The shooting went
on for a period of about 30 minutes or so during
which there was automatic rifle fire from an R5 rifle which emanated
from inside
the shack.
[39]
All the accused indicated that they were present at the time but that
they had not been involved
in the shooting. It was put by them to
these police witnesses that indeed it was the policemen themselves
that had, without provocation,
opened fire on the residents present
at the compound. It was further put that it had been the intention of
the police merely to
come and slaughter the residents by virtue of
the fact that they were incensed as a consequence of the attack on
the police station
which had occurred a few days before, and that the
vehicles had not driven slowly into the compound as alleged, but had
come in
at high speed. It was also put that the police had been
wearing something akin to socks over their faces. This was all
denied.
[40]
After a trial within a trial was held to determine the admissibility
of the various confessions
and pointings out made by the accused,
erstwhile accused 4 applied to have a legal representative appointed
to assist him. This
application was granted and resulted in a long
adjournment of the matter (there having also been a long adjournment
consequent
upon the various covid lockdowns). Ultimately, the legal
representative appointed for accused 4 applied for a separation of
trials
as his client wished to change his plea. This was granted, and
the trial proceeded against accused 1, 2, 3 and 5.
[41]
Subsequently, and after he had pleaded guilty before another court
and had been sentenced, the
erstwhile accused 4,
Mr. Tatsi
,
returned to the court as a state witness. To conclude the narrative
in this regard, it is convenient to deal briefly with his
evidence at
this stage.
[42]
He testified that he knew all 4 of the remaining accused and had
known them for a long time since
he had joined the Mancoba church
congregation during 2008, when he was 7 or 8 years of age. He has
never attended school. He further
indicated that as a member of the
Mancoba cult he was obliged to remain on their premises and was not
allowed to meet children
from the outside. The religious sect had
moved from Mzimkhulu to the Mancoba compound in Ngcobo during 2013.
During his evidence
he referred to himself as a slave or a soldier.
He regarded himself as a slave to one of the sons of the elder
Mancoba (who has
already been referred to), Thandazile. He further
indicated that during his lifetime, the elder Mancoba had been
perceived as their
“God”. He had died during 2015.
[43]
After his death, one of his sons known as Efraim, had announced that
he was indeed Jesus and
that the other brothers were all to be
angels. Thandazile became known as the Angel Gabriel and, as
indicated, Tatsi was one of
his slaves. Tatsi, amongst many others in
the congregation, believed these utterances of Efraim especially as
he appeared to be
able to heal people by the laying hands upon them.
Consequently, it appeared that he owed fealty to Thandazile, as did
others who
were also slaves to Thandazile. Accused 1, accused 2,
accused 3 and Tatsi, amongst others, were all slaves to Thandazile
and in
that capacity were scared of him, and the other angels, and
were not allowed to question what they were ordered to do.
[44]
Over a period of time, it appears that the cult experienced a time of
prosperity due to the fact
that a number of people joined, having
given up and sold their earthly goods and having donated the money to
the religious sect.
[45]
However, eventually this source of money ran out and, in order to
replenish it, the slaves were
ordered by Thandazile to go out and
steal items in and around the area of the compound, which they
proceeded to do.
[46]
At some stage before the occurrences in Butterworth and during 2017,
the slaves were ordered
by Thandazile to steal firearms. They were
told that the purpose of this was for the firearms to be used in
robberies of the cash
couriers known as SBV as a means of obtaining
money for the compound. Tatsi was present when the planning took
place for accused
2 and 3 together with Thandazile, Duva and Rigo to
go to Butterworth in order to carry out robberies with the purpose of
obtaining
firearms. The plan was to find a lone police officer,
assault him and remove his firearm. Indeed, after all the planning
had taken
place, and about midday on a certain day accused one, 2 and
3 together with Thandazile, Duva and Rigo, departed for Butterworth.

On their return late that afternoon, they had a metallic silver
handheld firearm which, on the instructions of Thandazile, was
hidden
by Tatsi. On CCTV footage, he identified Rigo and Duva attacking a
policewoman in a shop, to which video footage I shall
return later.
[47]
They had later used this firearm for target practice in certain
dongas nearby.
[48]
Subsequently a further plan had been hatched to carry out a similar
mission in Cala and accused
2, accused 3, Duva, Rigo and Thandazile
had left at about 09h00 returning at about 16H00 with another pistol,
similar to the one
which had been the object of the robbery in
Butterworth. This one however was black in colour. They had used the
firearm stolen
in Butterworth during their mission to Cala.
[49]
In the interim, various robberies/thefts had taken place in and
around the nearby town harvesting
a substantial amount of money, the
most important of which appears to have been the robbery of SBV
couriers.
[50]
Apparently making use of this money which they had stolen, Thandazile
instructed Tatsi, accused
one, accused 2, accused 3, Rigo and Duva to
prepare to accompany him to Cape Town for a spending spree. They had
indeed gone to
Cape Town but at a certain stage it appeared that as
the money was once again running out, Thandazile had begun planning a
further
mission. This resulted in their buying certain cutting
torches which had been organized by accused one. During all this, he
had
heard Thandazile speaking on the telephone to accused 5. Although
he was unable to hear all that was said, he overheard Thandazile

informing accused 5 about the robbery of the SBV van. In further
preparation for the upcoming mission, they had also bought certain

other equipment such as denim cloth, bolt cutters, a crowbar, 2 four
pound hammers, overalls, masks, thigh holsters, bullet proof
vests,
gloves and 2 way radios. They had furthermore exercised extensively
to improve their fitness in preparation for the upcoming
mission of
attacking the police and stealing more firearms. After all this they
had eventually returned to Ngcobo at about 8 o’clock
on 14
February 2018.
[51]
Over the next few days, the group had been in and out of Ngcobo for
the purposes of scouting
and reconnoitring the town in particular to
ascertain the movements of the police. At some stage, whilst Tatsi
and the other slaves
were carrying out the bathing routine of
Thandazile, accused had 5 entered the bathroom carrying two
containers with bullets packed
therein. He was also carrying a small,
brownish, firearm. At the time accused one, accused 2, accused 3,
Rigo, Duva and Tatsi were
all present. Accused 5 was not apparently a
slave or soldier attached to Thandazile but was attached to the Angel
known as Michael.
[52]
Further planning was thereafter undertaken with regard to the
upcoming mission which included
accused number 5 as he was in
possession of a white bakkie with a canopy which was to be used
during the course of the mission.
Although accused 5 appeared to be
entering the planning stages at a later stage, it appeared to Tatsi
that accused 5 had been well
aware of what was being planned and
Tatsi had understood that this was because of the ongoing
communication between accused 5 and
Thandazile. The group also
carried out further target practice under the orders and supervision
of Thandazile.
[53]
Late one evening, all the equipment obtained in Cape Town was loaded
onto accused five’s
bakkie. Accused one, accused 2, accused 3,
Rigo, Duva, Thandazile and Tatsi then all drove to town. At a certain
stage they stopped,
and he was instructed to walk into town in order
to check the movement at or near the police station. Although he did
not reach
the police station out of fear, he reported to Thandazile
that there were many policemen, and the mission was
consequently
aborted. Accordingly, the plan was varied and they
decided to attack the nightly police patrol near Nyanga school and to
steal
their van.
[54]
Once again, they loaded the equipment at about 22h00 and returned to
town. When they arrived
at Nyanga school, accused one, accused 2,
accused 3, Duva, Rigo and Thandazile having walked there, accused 5
parked his vehicle
facing town. Tatsi was in the vehicle at the time.
Because the police van did not arrive on time, they drove towards
town after
accused 3 had also boarded the van.
[55]
The others had hidden near the road in order to ambush the police.
Upon driving towards town,
they noticed a police van approaching.
Accused 5 had executed a U-turn and had driven back towards the
school. The police vehicle
had flicked its lights indicating that
they should stop but accused 5 simply accelerated. Accordingly, the
police van had chased
them. When they reached the school area,
accused 5 had stopped, had alighted and had approached the police
officers. The police
officers, who were 2 in number, had also
alighted and were at that stage attacked by the remaining group. The
police were shot
by Duva and Rigo. These policemen were disarmed and
after being shot again by Thandazile using a large firearm taken from
one of
them, their bodies were moved off the road.
[56]
Thereafter, driving in the police van, accused 5 having gone back to
the compound, the group
had driven to the police station in Ngcobo.
The equipment had been offloaded from accused 5’s bakkie and
onto the police
van.
[57]
At the police station, wearing masks and balaclavas they had entered
the police station and Tatsi,
who had remained outside, heard
shooting from both small and large firearms. He had approached the
front door to the police station
and had noticed a police officer
lying in a pool of blood near the entrance to the police station.
There were female police officers
inside who appeared to be very
scared and some of them were crying. Duva was shouting at them
demanding the keys to the safe and
one of the ladies had taken him to
another office. These ladies were thereafter taken outside. Before
leaving the charge office
area, Tatsi had seen a 2
nd
policemen also lying behind the counter in a pool of blood.
[58]
He had also seen accused 2 and 3 cladding themselves in bullet proof
vests. He had taken a big
firearm as had Thandazile and Duva. As they
emerged from the charge office, they had seen another police van
entering the gate
which they had proceeded to attack. Further
policemen were shot as a result. More firearms were taken.
[59]
From there they had gone to Capitec bank where they had attempted to
break in using firearms
to shoot at the glass doors. The equipment,
including bolt cutters and cutting torches, had been taken into the
bank and apparently
used in an unsuccessful attempt to break into a
safe. In this regard, he testified that Rigo had been skilled at safe
breaking
as he had been a “thug” prior to his joining the
church. Whilst this was going on, the other members of the group
stood
guard outside where more shooting had taken place. Tatsi
identified all the members of the group on certain CCTV video footage
which was shown to the court. In this regard, it must be stressed
that all the faces of these persons involved were covered and
could
not have been identified by an ordinary layman, but Tatsi indicated
that as he had known the various role players extremely
well, he was
able to identify them from their movements and dispositions. He was
also able to identify them as he had been there
himself and knew what
they were wearing etc. Expert evidence was later led by the state
confirming the downloading of all this
video footage (including the
Cala footage), that it was not in any way corrupted and that its
related chain evidence was complete.
[60]
As a result, they had aborted the mission and had taken the police
van together with the equipment
to a high point on a nearby mountain
and pushed it over. They had then returned to the compound.
[61]
He also confirmed the evidence of Lwandiso Poswa relating to the
meeting which occurred the following
day as called by Xolisa. He
added that he had joined the group near Thandazile at that time to
show that he had also been involved
in the shooting and robbing of
the police i.e. he was admitting this by his conduct. Later that day
he had overheard Mrs. Mancoba
saying that it had been a good thing
that the police officers had died because they had been giving the
Mancoba cult problems over
a long period of time. This appeared to be
a reference to the police removing young children who were not
attending school from
the compound. He also observed the firearms
being marked with a red dot as Xolisa had directed because they had
become church property.
[62]
He further testified with regard to the raid by the police on the
Friday night and the fact that
there had been a number of gunshots
and people screaming. He also observed one of the Angels, Mabute,
emerging from his room carrying
a large dagger or knife whilst
commenting that a bullet could not penetrate him. Mabute had rushed
out but had later returned badly
wounded. It appears that he died in
the room. He thereafter testified as to the arrest of all the males
at the compound, the fact
that they were incarcerated at Ngcobo
police station and the fact that there had been no assaults.
[63]
He testified further that he had been untruthful during his evidence
at the trial within a trial
when he had denied making his confession
and pointing out freely and voluntarily. He said he had also been
untruthful in testifying
that the police had tortured him and others.
He had indeed made the confession and had performed the pointing out
voluntarily.
He also confirmed that accused 5 had not been present in
the Magistrates Court at the 1
st
appearance with him,
accused one, 2 and 3 but had apparently appeared separately the
following day. He confirmed that when he joined
accused one, 2 and 3
on their way to court that Monday morning, they did not show any sign
of being assaulted. He affirmed that
they had appeared with one of
the senior members of the cult, named Benjamin, who had instructed
them to tell the truth.
[64]
He also testified that at a certain stage whilst they were
incarcerated at Wellington prison,
Mrs. Mancoba had told him that he
should deny everything and blame the police. He understood that the
other accused had received
similar instructions from her as they had
reported this when they had returned to the cells. As a result, they
had colluded with
one another to make up a story regarding the
reasons as to why they had confessed, developing a story that they
had been tortured.
He said that he had been bullied and cajoled in
this regard by the other accused who are older and more senior to
him. During the
course of the trial, he had seen the light and
decided that the Mancoba beliefs were not correct and were indeed
evil. He decided
to distance himself from them and to tell the whole
truth. He wanted to do this because he believed it was the correct
and moral
thing to do and because he wanted the families of the
deceased to understand and know what had happened to their loved
ones.
[65]
Finally, he also testified that certain witnesses had been phoned by
the other accused and instructed
to testify in their defence such as
to testify that they had been sleeping at the compound when these
offences had been committed.
[66]
Warrant officer Jacobs
testified that on 24 February, 2018, at
approximately 06h15, he together with a team of officers had gone to
the Mancoba residence
and found various cartridges lying around and a
number of dead bodies. There were no living people present, save for
policemen.
He then searched the shacks and found various things
therein. He searched the shacks from left to right as he faced them.
Of importance,
in the first shack he found a crossbow behind a red
couch and 2 swords under another couch. Under a bed, in a brown
leather bag,
he found three 9 mm pistols. Their serial numbers were:
W[…]
T[…]
P[…]
Although
they had magazines, there was no ammunition.
Inside
the base of a bed which had been split open he found:
One
R5 rifle with no ammunition. Serial number: 8[…]
One
shotgun with no ammunition. Serial number H[…]
One
shotgun with no ammunition. Serial number H[…]
Each
of these firearms had a red dot painted at a point between the butt
and the barrel.
[67]
In the 4
th
shack and in one of the houses he recovered
Bush knives (one each) under certain beds. In the house, Mrs. Mancoba
claimed that
the bedroom belonged to her.
[68]
All these exhibits were taken by him to the Ngcobo police station
where they were registered
in the SAP 13.
[69]
Thereafter
Sergeant Peyane
from the provincial CSI (“Crime
Scene Investigation”) testified as to his findings at the area
where the police van
had been pushed or driven from the top of the
mountain.
Captain Ngxangxa
also testified with regard to his
findings at the Ngcobo police station on 21 February 2018, and with
regard to his findings at
the Mancoba compound during the morning of
24 February 2018. Both of these policemen prepared full reports
relating to their findings
which were handed in as exhibits “N”,
“O” and “P”.
[70]
Warrant officer Makhampi
gave evidence relating to certain
computer printouts indicating when certain firearms reflected therein
were reported as missing,
and when they were recovered.
[71]
Lieutenant Colonel Mangena
from the Forensics Science Lab,
Pretoria (ballistics) attended the Ngcobo police Station crime scene
on 22 February 2018. He submitted
a full report of his findings as
exhibit “S”. He gave evidence as to the trajectory of
bullets, their calibre, and
certain reconstructions which he could
determine from the objective evidence he found.
[72]
Captain Nqumama
gave evidence in support of warrant officer
Jacobs. He testified that he, as a member of the National
Intervention Unit, Mthatha,
had been ordered to assist Jacobs by
guarding him during the course of his search. He corroborated Jacobs
with regard to certain
of the items found in the shacks referred to
by Jacobs. It was put to him by accused 1 and 2 that he was present
whilst the accused
were assaulted and that he had a nickname “Shakes”
which he denied.
[73]
Captain Sigcu
testified that he had attended at the scene at
the Ngcobo police station during the early hours of 22 February 2018.
He had taken
control of the situation and had ensured that the scene
at the police station was secured. He had subsequently inspected the
Capitec
scene, the scene at or near the Nyanga School and the scene
at the top of the mountain where the vehicle had been pushed over. He

also arranged for forensics officers to examine all of the scenes.
Subsequently, the Hawks had taken over. He had also been present
when
the shootout occurred at the Mancoba compound on 23 February 2018 but
had been with the third group to enter. He had not been
involved in
the shootout but had taken cover about 80 to 100m away. All the males
present at the compound had been rounded up and
taken to Ngcobo
police station where, according to him, they had been screened so as
to ascertain which of them were the true suspects,
and the balance
were released. At some stage during these proceedings he was also
phoned by members of the community who had arrested
two other
suspects who had run away. He had interviewed one of these suspects,
the witness Poswa, and had taken a statement from
him. Under cross
examination it was put to him that he had been present at the garage
under the magistrates’ court where
the accused had been
assaulted and that he had, in some instances, joined in the assaults.
He denied this.
[74]
Thereafter the court entered a trial within a trial
to
determine the admissibility of the alleged confessions made by the
accused as also alleged pointings out made by them. The accused
all
indicated that they had been assaulted and forced to make the
statements and the pointings out which they agreed that they
had done
but, as described by accused one, they had been forced to rehearse
what to say to the police officers whilst they were
being assaulted.
They also indicated which witnesses they wanted the state to call as
being the persons they alleged had assaulted
them. They further
alleged that their Constitutional Rights had not been explained to
them. At the end of the trial within a trial
I ruled that the
documents were admissible and indicated that full reasons for this
ruling would be given in the main judgment.
These are those reasons:
[75]
Because of the length of the trial within a trial I do not intend to
summarize the evidence of
each and every witness. The state led the
evidence of many police witnesses together with the evidence of two
lay witnesses. All
five accused testified, including erstwhile
accused 4, and they called four witnesses. This evidence, together
with the argument,
cumulatively spanned many months.
[76]
The essence of the state’s evidence, as testified to by several
witnesses, was that on
25 February 2018 certain of the task members
interviewed a witness known as Lwandiso Poswa. A statement was also
recorded from
him by Captain Sigcu on Sunday, 25 February 2018. Poswa
implicated accused one, two, three and  erstwhile accused four.
After
the task team had interviewed him, and during the late
afternoon, it was suggested that the team should go to the
magistrates’
court to interview the suspects as the offices at
the police station were too small.
[77]
They utilized one of the courts, and a large contingent of policemen
(approximately 30 in all)
filled it. There were several senior
officers present, including General Magadela, Captain Ngxola and
Captain Bambelele. The first
suspect to be brought in was accused 2
who stood in the accused’s dock facing the gallery which was
filled with the police
officers. Magadela introduced them to accused
2 and informed him of his constitutional rights. After doing so, he
asked accused
2 what his election would be. Accused 2 said that he
was prepared to tell them everything because he did not believe in
the Constitution.
He added that he did not wish to be legally
represented.
[78]
He was also asked his name and surname. Captain Diko noticed that he
appeared to be afraid as
a result of which he, that is Diko, took
accused 2 downstairs to a certain garage. His reasons for doing so
were apparently that
he felt that accused 2 had been uncomfortable in
the courtroom facing such a large contingent of police officers, and
that it would
be easier to interview him with a small interrogation
team. He was joined by Captain Ngxola and Captain Bambelele. Accused
2 was
again apprised of his constitutional rights and was told that
he would be questioned by the team of three police officers then
present. He, that is accused 2, appeared to be calm. Accused 2
thereafter gave a statement to them as to how the incident had
unfolded.
[79]
Accused 2 appeared to them, particularly to Captain Ngxola, as being
not quite normal mentally
as he talked about the seven sons of the
then deceased Mr. Mancoba as being angels sent by the Lord, and he
told them that he conducted
conversations with the late Mr. Mancoba
senior. He was told that what he had said should be recorded by a
commissioned officer,
to which he agreed, and, he also agreed to make
a pointing out.
[80]
A similar procedure was followed with accused 1, accused 3, erstwhile
accused 4 and accused 5
in that order. They all responded in a
largely similar manner and agreed to make statements before
commissioned officers. In some
instances, the accused spoke of
incidents of which the police officers knew nothing. It turned out
that these incidents referred
to the robbery at Butterworth and the
robbery at Cala which, on further investigation thereafter, were
confirmed and the police
dockets located. These police dockets were
then appropriated, and those charges were joined with the charges
emanating from the
incidents at Ngcobo. At a later stage, all five
accused pointed out certain features and things to other commissioned
officers
and accused two and three made further confessions.
[81]
All the accused maintained that they had been assaulted extensively
by the police officers before
and during the interviews in the
garage. These assaults,
inter alia
, consisted of having urine
sprayed over them and in their faces, suffocation with a rubber tube
which had had pepper spray sprayed
on it, slapping them, punching
them and handcuffing their hands behind a chair. They were forced,
essentially, to implicate themselves.
This was all denied by the
various police officers who testified, including warrant officer
Diko, Captain Ngxola and Captain Bambelele
who alleged that they, and
they only, had carried out the interrogation. This, in itself, was
disputed by the accused who said
that there had been many other
policemen present assisting in the assaults and coercion. As I have
indicated, all four accused
testified as to these events, and added
various other aspects such as allegations that the police had, on
Friday, 23 February 2018,
simply arrived at the Mancoba compound and
had commenced shooting at those present without provocation. They
added that they had
been assaulted during and after this and on their
way to the police station, as also at the police station. They
testified that
their Constitutional rights had not been explained to
them at any stage before they made the confessions. Although they
agreed
that Sergeant Ntsevu had prepared their SAP 14 (a) documents,
they denied that he had explained their Constitutional rights to
them, or had provided them with copies of this document.
[82]
The confessions and pointings out with which we were concerned were
as follows:
·
A confession made by accused one to Colonel Runeyi on 25 February
2018;
·
A confession made by accused two to Colonel Homoyi on 26
th
of February 2018;
·
A second confession made by accused two to Colonel Ntatsha on 3 March
2018;
·
A confession made by accused three to Colonel Vakala on 25 February
2018;
·
A second confession made by accused three to Colonel Mohamet on 3
March
2018;
·
A confession made by accused five to Colonel Mgolombane on 26
February
2018;
·
A pointing out made by accused one to Colonel Mute on 27 February
2018;
·
A pointing out made by accused two to Captain Mkhupa on 27 February
2018;
·
A pointing out by accused three to Colonel Ndzimela on 28 February
2018;
·
A pointing out by accused five to Colonel Nani on 1 March 2018.
[83]
In terms of section 217 of the CPA a confession made to peace officer
is inadmissible in evidence.
If it is made freely and voluntarily by
a person in his sound and sober senses without being unduly
influenced thereto, and if
it is reduced to writing before a
magistrate or a Justice of the peace (a commissioned officer) it
becomes admissible in subsequent
legal proceedings. It is trite that
the onus remains upon the state to prove beyond a reasonable doubt
that indeed it was made
freely and voluntarily by such person in his
sound and sober senses, without undue influence.
[84]
As regards commissioned officers, there is no requirement in our law
that a magistrate should
be preferred over a commissioned officer. It
has been my experience in this court over many years that magistrates
are indeed loath
to become involved in the taking of confessions, for
one reason or another. Commissioned officers are trained in the
taking of
confessions and many of them have had extensive experience
in this regard. Indeed, the Appellate Division (as it then was) has
found that even where a commissioned officer was a member of the team
of investigators, he is not disqualified from taking a confession.
In
this regard see the cases of
S
v Mbatha and Others
[1]
and
S
v Mavela
[2]
.
[85]
I am also fully alive to the dictum in the case of
S
v Gcam Gcam
[3]
in which Catchalia JA said the following:
“
[49] When
confronted with confessions made by suspects to police officers
whilst in custody — even when those officers are
said to be
performing their duties independently of the investigating team —
courts must be especially vigilant. For such
people are subject to
the authority of the police, are vulnerable to the abuse of such
authority and are often not able to exercise
their constitutional
rights before implicating themselves in crimes. Experience of courts
with police investigations of serious
crimes has shown that police
officers are sometimes known to succumb to the temptation to extract
confessions from suspects through
physical violence or threats of
violence rather than engage in the painstaking task of thoroughly
investigating a case. This is
why the law provides safeguards against
compelling an accused to make admissions and confessions that can be
used against him in
a trial.
[50] In addition courts
must be sceptical when the state seeks to use a confession against an
accused where he repudiates it at
the first opportunity he is given.
Because ordinary human experience shows that it is counter-intuitive
for a person facing serious
charges to voluntarily be conscripted
against himself. Often it is said that the accused confessed because
he was overcome with
remorse and penitence, 'a desire which vanishes
as soon as he appears in a court of justice'. That is sometimes true,
but is usually
not.”
[86]
As will be gleaned from what I have said, there were vast disputes of
fact between the state
and the defence as to how it came about that
the confessions and pointings out were taken. It was the state’s
case that they
were made freely and voluntarily without any undue
influence whilst the accused maintained that they were extensively
tortured
and were never free to make the statements. In addition, it
became clear that they maintained that such statements as they did
make did not emanate from themselves as they were, according to the
accused, told what to say and they merely repeated what they
were
told, together with certain additional elements they had heard from
other persons and certain things which they made up as
they went
along to create a flowing narrative. Bearing in mind the law in this
regard, it was necessary to determine whether the
state had
established its case beyond a reasonable doubt.
[87]
Regarding the evidence for the state, overall I was very impressed
with the testimony of the
various police officers, and that of the
two security guards. However, their evidence is not without
criticism. I do not intend
to deal with the evidence of each and
every state witness. Suffice it to say that where I do not level any
criticism against the
testimony of a state witness, that witness has
acquitted him or herself well in the witness box and I accept such
testimony.
[88]
Dealing firstly with
Warrant Officer Diko
, despite my initial
misgivings about this witness, he grew stronger as his evidence
progressed. He remained in the witness box
for more than 2 days and
was cross-examined at length by the accused. My initial concerns
related to the fact that he testified
that accused 2 had initially
been brought into the courtroom in front of an array of about 30
policemen including Generals and
Brigadiers. As his questioning
commenced, Diko said he had noticed that accused 2, who had been
sitting in the accused’s
dock, had become nervous with his
hands shaking. Diko said that he had immediately stood up and had
taken accused 2 out to the
court garage where he had calmed him down.
Captains Bambelele and Ngxolo had followed him and had queried why he
had taken accused
2 out. He had explained his reasons to them and the
three of them decided to question accused 2 on their own as it would
have been
more conducive to relaxing him. They were also the
investigating officers in the case. My immediate concern was that
this appeared
to be a sort of Mutt and Jeff approach and that they
may have taken him down to the garage to assault him out of view of
the other
police officials, especially the ranking staff. This was
certainly the view of the accused who cross-examined him extensively
in
this regard. Indeed, as the record will reveal, I spent some time
closely examining him on this aspect which questioning he endured

very well. The cross examination by the accused also assisted in
convincing me that indeed he is a truthful witness. He answered
all
their questions in a clear and forthright manner and did not deviate
from his evidence. The accused put to him that they were
so
extensively assaulted by an array of many policemen that it simply
became utterly improbable. According to them, they had urine
poured
over them, bags placed over their heads, tubes over their heads, were
beaten and kicked etc. It is most improbable that
all this could have
occurred with a large number of policemen sitting nearby, and
especially with the ranking staff in the vicinity.
This is all the
more so as the ranking staff had clearly been brought in to calm the
situation. This was later confirmed by various
ranking officers, such
as General Galawe, General Magadela and Brigadier Govendor, amongst
others. According to them, the generals
in particular had been
brought in to contain what could well have otherwise been a volatile
situation and, contrary to the submissions
made by the accused, to
ensure that any residual anger by local policemen as a consequence of
their colleagues being shot, was
suppressed and to ensure that a
clean and proper investigation took place. General Magadela, who was
a most impressive witness,
said that this was one of the very reasons
why he, and the other senior officers, were delegated to be present
and to take charge
of the investigation so as to ensure that
everything was done by the book. His very presence there would have
ensured that the
investigation was handled correctly, and he was
satisfied that it had been.  Within these parameters, it is
again extremely
unlikely that the investigators would have been
allowed to carry out the extensive torture alleged by the accused.
[89]
As I said, as Diko’s evidence wore on and particularly under
cross examination, I became
very impressed with his testimony as he
answered questions directly and did not appear to become emotional,
despite all that was
being put to him. There are also some telling
parts of his evidence such as his description of the accused’s
personal circumstances
and in particular the fact that they said that
they did not want legal representation because of their religion
(which accords
with the situation in court) together with the fact
that they said, or some of them said, that the reason why they wished
to confess
was because of the fact that their religion dictated the
principle that a person who had done wrong should be punished for
that
wrong. Diko’s evidence was substantially corroborated in
all material respects by his co-investigators and by many other
witnesses. Of substantial importance in this regard is the fact that
not one of the commissioned officers, all of whom were carefully

selected from outlying areas and who would have been unlikely to have
had much, if any, knowledge of the events that had occurred
at the
Ngcobo police station, mentioned that any of the five accused had
told them of such assaults. Additionally, two security
officers who
were patrolling the area around the garage that evening, testified
that they had not heard or seen anything untoward.
This despite the
fact that certain of the accused indicated that there had been a high
volume of noise. As if that were not enough,
there is additional
corroboration in the form of a failure on the part of the accused to
tell the one person they touted throughout
as being the person they
would rather have made the confession before, a magistrate. At the
first appearance in court, and indeed
subsequent appearances, they
failed to relate any form of assault. Accused two and three at their
bail application once again failed
to mention such alleged assaults.
There can be no doubt whatsoever that by the time they came before
the magistrate they were fully
conversant with their constitutional
rights, which were repeated by the magistrate as confirmed by the
accused themselves.
[90]
A second aspect of the state case which concerned me to some extent
was that the accused managed
to produce such long lists of police
officers whom they alleged had assaulted them. However, it became
more than probable as the
evidence wore on that they had simply mined
the copies of the docket which they had in their possession for
statements of the various
policemen whom they proceeded to accuse in
this regard. This became more obvious as time went by particularly
when it became clear
that certain of the police officers they had
pointed a finger at were not even part of the investigation. In this
regard I refer
to Sergeant Kutu and Warrant Officer Mancoba.
Furthermore, Sergeant Kutu in fact confirmed my suspicions in this
regard. He said
that he never told accused 4 of his first name which
was “Xola”, as, when he took accused 4 from Mthatha
Central on
the Monday morning and conveyed him to Colonel Mali for
his confession, he had only introduced himself as “Sergeant
Kutu”.
The accused, and in particular accused 4, could only
have obtained his name from his statement in the docket.
[91]
A further aspect was the fact that the state witness who testified in
the main case, Poswa, had
mentioned that accused two appeared to him
to have been assaulted. Indeed, had the accused not called Lwandiso
Poswa as a witness
in the trial within a trial, I would have done so
in the exercise of my inherent powers. As it turned out, and in my
view, Poswa
was unable to support accused two in this regard as he
was not a good witness, an aspect which I will deal more fully with
later.
[92]
I have already touched on the evidence of Sergeant Ntseveu. I found
him to be a compelling and
excellent witness. I have little doubt
that he was telling the court the truth as to the fact that he read
out the accused’s
rights to them from the SAP 14 (a) document
after which he had caused the various detainees to sign the document
individually.
He was taxed extensively about the fact that he had
placed the time of 18H05 as being the time when the rights were
explained to
the suspects. It was put to him that this could never
have happened with all 40 odd suspects. But, when one looks at the
document,
in parenthesis under the time there is the word
“(informed)”. This clearly indicates that the time to be
inserted was
the time when they were informed of their rights, not
when they actually signed. On his evidence they were informed
collectively
earlier when he read the rights out to all of them.
Therefore, the same time had to be filled in. I have no doubt that he
properly
informed all the detainees, including the accused, of their
rights at that time, which was Saturday, 24 February 2018, well
before
the accused were interviewed by the investigators and before
they made their confessions.
[93]
There was also some valid criticism of the evidence of Colonel Mute
who was the officer in charge
of accused one’s pointing out. He
was a most impressive witness but there was an apparent anomaly
relating to times. He said
that he had completed the pointing out at
19H51 as reflected on the pro forma (exhibit “WW”).
However, the OB entry
reflecting accused one being returned to the
cell (exhibit “XXX”) reflects that he was returned at
18H25. Colonel Mute
was adamant that his time was correct, and it is
highly unlikely that he would have got this wrong especially as the
completion
of the pro forma after the lengthy pointing out would have
taken some time. At a later stage, Sergeant Ndzimela testified. She
said that she had collected accused one from Colonel Mute. She had
taken him to the charge office where one Constable Namba had
made the
entry in the OB and she and two other police officers had taken
accused one back to the cell. She testified that, at the
time, none
of the police officers at Ngcobo had received psychological therapy
and that the police station was extremely busy because
of the ongoing
investigation. Exhibits were being booked in and police officers were
moving in and out of the charge office at
a great rate. It was
possible that mistakes could have been made. She was adamant that she
had collected accused one when it was
already night-time (it was
February and unlikely to have been dark at 18H25).
[94]
My concern was that even if there was a mistake with the entry
allegedly at 18H25 (which time
might have been a mistake) she
personally had made two further entries thereafter at 19H00 and
20H00. When I questioned her about
this, she said that it may well
have been that those entries were made retrospectively because of the
turmoil at the police station.
Thus, the sequential factor of the
entries does not necessarily prove the accuracy of the entry at
18H25. This was subsequently
clarified and confirmed when Constable
Namba testified. Her evidence was to the effect that the police
station was like a train
station at the time with such a major
investigation going on. It is clear from all the evidence that there
were many senior officers,
generals, brigadiers and the like, present
at the police station. According to her they took and inspected the
OB book on a regular
basis and, when Sergeant Ndzimela brought
accused one to the charge office, the OB book was not present
therein. She was unable
to say how long it was out of the charge
office, but she was forced to make retrospective entries. The entry
relating to accused
1 was one of these retrospective entries.
Accordingly, as she had made a note of only his name in her
pocketbook, she had to “balance”
the book as it were by
retrospectively writing this entry in after the previous entry and,
in doing so, she simply added 5 minutes
on to make it look correct.
The next entry was made by Sergeant Ndzimela apparently at 19H00. As
I have said, Ndzimela testified
that this had been done
retrospectively because of all the confusion. Therefore, whilst it is
reflected as 19H00, it was not written
in at that time but sometime
later. This also supports Namba’s evidence that she had written
the entry relating to accused
1 sometime after 18H25 and probably
also well after 19H00 as that later entry was made long after 19H00
by Sergeant Ndzimela.
[95]
All in all, it seems to me that Colonel Mute must be correct in this
regard and that the 18H25
entry is not accurate.
[96]
A further issue came out under cross-examination of Sergeant Dalani
who took accused three to
Captain Ndzimela for a pointing out on 28
February 2018. Accused 3 maintained that Diko had been the one who
placed leg irons on
him telling certain other police officers at the
time that these leg irons had been specially made for him (Diko).
Accused 3 then
pointed out that the leg irons that Diko had put on
him were different from the normal ones in that they had padlocks on
them.
Dalani denied that they had such leg irons at the Ngcobo police
station and maintained that the leg irons he had used on accused
3
were the normal ones without padlocks. However, accused 3 pointed out
on one of the photographs taken during his pointing out
that he
indeed had been wearing leg irons with padlocks on them. This witness
was adamant that he had not given accused 3 such
leg irons. It is
difficult to understand how this came about. I was impressed with
Sergeant Dalani as a witness and the fact that
he had taken and
retrieved accused 3 from Captain Ndzimela is indeed supported by
entries in the OB book.
[97]
However, whatever the position in this regard, it seems most unlikely
that accused 3 is telling
the full truth regarding Diko. This became
apparent when Colonel Mohamet testified. He took a further confession
from accused 3
the following Saturday (3 March 2018). In the pro
forma document accused 3 maintained that he had come for the second
confession
because he had failed to give the full picture on the
previous occasion and wanted to explain fully what had happened. In
fact,
he said the following to Colonel Mohamet
·
“I do not expect anything. I just want to tell the truth.”:
·
Regarding his earlier pointing out to Ndzimela: “To Captain
Ndzimela.
Early this week. When I was telling the truth about the
incident at the police station.”
·
When asked why he wished to repeat the statement: “Because I
want
to start from the beginning. And also tell what I did not tell.”
[98]
In my view it is highly unlikely that he would have requested to go
for a second confession sometime
after he had made the first and a
few days after he had done the pointing out if indeed he had been so
badly assaulted and if indeed
there had been some interference by
warrant officer Diko the previous Wednesday during the pointing out
and relating to the leg
irons. In the circumstances, I think that the
leg iron issue, whatever the truth of it, is really a non-issue.
[99]
Turning then to the evidence of the accused, I can only say that
accused one was an appalling
witness. There were extensive
contradictions between his evidence and that which he put to the
various witnesses, and indeed as
between his evidence in chief and
his answers under cross examination. There were also a number of
aspects which were so improbable
as to be rejected out of hand. He
was garrulous, arrogant and evasive in the extreme.
[100]
I do not intend to dwell much on this as the record will speak for
itself but will mention a few aspects. Firstly,
he maintained that
accused five was in the dock with them on 26 February 2018. As the
trial progressed, it became more and more
obvious that this was
untrue. Not only did many of the police witnesses testify that
accused five appeared in court on the following
day being 27 February
2018, but the official court documents such as the charge sheet,
transcription of proceedings on 26 February
and transcription of
proceedings on 27
th
of February make it absolutely clear
that accused five was not in the dock that day. Precisely why this
lie was ever created is
quite beyond me. The police had absolutely no
reason to lie about this. There was nothing to point to any form of
irregularity
had accused five appeared on the 26
th
.
[101]
Whenever he was cornered under cross examination, he would become
evasive or change his evidence. At times he
blamed the court in an
arrogant manner for not allowing him to go into detail, and for other
things that he could not explain under
cross examination. He was
utterly unable to explain why all sorts of new evidence which he
raised during his testimony in chief,
was never put to any of the
state witnesses, even though such matters were of importance.
[102]
His evidence as to the fact that, upon arrival at the police station,
they were made to walk on their knees to
the cells and were
threatened with knives etc., was raised for the first time during the
entire trial when he testified in chief.
When taxed as to why these
facts were not put to any state witness, his first answer, which
became a stock answer, was to the effect
that he did not do so as he
knew that he would give evidence ultimately and would then tell the
court. When pressed, he gave a
further excuse to the effect that
there had been a lot on his mind therefore he failed to put
everything. At a later stage he came
up with a further excuse, that
being that none of the state witnesses had testified in this regard
relating to their arrival at
the police station, and that he did not
wish to waste the court’s time. All of this, despite the fact
that this appeared
to be, if it ever occurred, important evidence.
Finally, it was never raised as a ground at the outset of the trial.
[103]
The entire question of having pepper spray sprayed into the cells not
only differed from the versions given by
his co-accused and other
witnesses, but was improbable in the extreme. Precisely why the
police would have gratuitously assaulted
all 40 odd detainees to this
extent, and have sprayed pepper spray at them in confined
circumstances, beggars belief. At that stage,
although the police
were unaware of the precise suspects, they were aware that a small
band of young men had been involved. Conversely,
they were fully
aware that by no means all 40 odd of the males detained at the
Mancoba compound, were involved in the shooting
at the police station
and the shooting at the compound on Friday night.
[104]
There was thus absolutely no reason for any policeman to have
involved himself in such extensive, gratuitous and
unnecessary
assaults.
[105]
Finally with regard to accused one, I ruled that his confession could
be used for the purposes of cross-examination.
When this was put to
him, it became abundantly clear that he was not telling the truth.
His explanation that he was able to give
an extensive, flowing and
clear confession as to what had happened during the course of that
night as a consequence of what had
been told to him by the
investigators, what he had heard from certain of his colleagues and
what he personally had added again
beggars belief. Accused one’s
stock answers were either that the story came from Ntsevu, or that it
came ‘out of his
mind’, or that it was ‘hearsay’,
he having overheard two of his colleagues discussing the events of
21/02/2018
and that he had simply regurgitated all this to create a
flowing story to satisfy Col Runeyi, and the investigators. This is
all
highly improbable, given the extensive detail and the
unlikelihood of his having placed himself so squarely in the centre
of activities
as it is a natural human instinct to downplay one’s
own role.  Furthermore, none of this was put to any of the state

witnesses. Accused one’s evidence clearly stood to be rejected
as false.
[106]
As far as accused two is concerned, his demeanour was certainly an
improvement on that of accused one. His evidence
in chief was recited
with reasonable precision and with a certain amount of detail.
However, accused two had clearly prepared a
full note of his evidence
from which, to a large extent, he read. At some stage during his
testimony, I asked him about this and
as to whether it was made
contemporaneously. It appeared from his reply that it was not
contemporaneous but consisted of notes
that he had made in
preparation for giving testimony.
[107]
However, this is a clear case of the “devil being in the
detail”. As his testimony proceeded, and
particularly under
cross examination, accused two crumbled. His demeanour changed from
that of being well composed to a degree
of surliness and in many
instances resorting to sarcasm. He seemed desperate to ensure that
the confessions were not received for
the sole purpose of
cross-examination, on application by the prosecutor, in view of the
fact that he maintained that these confessions
had been dictated to
him by warrant officer Diko, and that, in fear, he had simply recited
what he had been told. What makes this
surprising is that if indeed
his version is true, and the content of the confessions did not
originate from him but from Diko,
one would have expected him to have
welcomed the opportunity to prove this by pointing to the content of
the confessions. However,
once the confessions were received, it also
became abundantly clear that he was not telling the truth. There are
several reasons
for this. Firstly, whilst accused two is clearly an
intelligent and articulate young man, it is simply too much to
believe that
Diko could have presented to him in one sitting
(together with snippets of information given during the
interrogation) all this
detail, which he could subsequently repeat
with such precision. Secondly, when one considers this as against
accused two’s
constant refrain when cross-examined that he
simply forgot or had not remembered what was in the record, the lie
becomes all the
more obvious. He cannot have it both ways. Either he
is brilliant at listening to a long and convoluted story and being
able to
repeat it verbatim or he is not. Thirdly, there are a number
of aspects of the confessions which Diko could simply not have known.

All the minute detail which accused two represented in those
confessions, could never have come from Diko who had not been present

at the commission of these crimes, on any version. Fourthly, whilst
accused two initially seemed to present his case based on the
fact
that all that was contained in the confessions emanated from Diko, it
metamorphised to some extent in that, particularly dealing
with the
confession to Ntatsha, there seemed to have been three distinct
sources. Firstly, there was what Diko had told him. Secondly,
there
was what he had discussed with his co-accused in this regard in
dealing with what he should say. Thirdly, there was his own
original
input. Despite his professing to have no memory whatsoever of a
number of aspects relating to the confessions, when the
second
confession was put to him, he was able to specify with relation to
each and every aspect of it, where it had originated
from. This is
despite the fact that the narrative in the confession proceeds very
clearly, lucidly and logically. This is extremely
improbable, and I
have no doubt that accused two was fabricating as he went along in
this regard, and others.
[108]
Fifthly, accused two maintained that he was terribly traumatized as a
consequence of the torture and the subsequent
threats relating
thereto. He amplified this by saying that even during the course of
his cross-examination of Diko, he was so angry
and upset that he
failed put a number of things to him which were in his words “very
important”. These were aspects
which only came out during his
evidence in chief, and in many instances under cross examination. I
observed the accused and the
witnesses closely throughout the trial
within a trial. At no stage during accused two’s cross
examination of Diko, did it
appear that he was traumatized in any
way. In fact, my impression was that he was enjoying the opportunity
to show his linguistic
abilities and his intelligence maintaining,
throughout, a surly smile on his face. This was certainly not the
visage of someone
who was reliving trauma that he had experienced
some two years before. Indeed, had accused two been traumatized to
the extent he
would have the court believe whilst making his
confessions to Homeyi and Ntatsha, one would have expected this to
have affected
his powers of recall. Had such a traumatic experience
occurred and had it traumatized him to this extent, it is most
unlikely that
he would have been able to remember precise details
that had been dictated to him by Diko in order to repeat them with
such clarity
to the commissioned officers.
[109]
Finally, as I have already indicated, these commissioned officers
came across as entirely independent witnesses,
and I was immensely
impressed with their evidence. In these courts, I have listened to
many trials within a trial where commissioned
officers have given
evidence. A number of them have been, to say the least, unimpressive
for one reason or another. However, by
comparison, most if not all of
the commissioned officers who testified in this trial within a trial
did so with alacrity, independence
and honesty. When compared with
the calibre of evidence tendered by accused two, I have little
hesitation in rejecting his and
accepting their evidence.
[110]
There are further aspects regarding accused two’s evidence.
There were a number of contradictions between
his evidence and that
which he put to the various witnesses and there are number of aspects
which are clearly of importance which
were never put to the
witnesses, indicating without doubt that they were fabricated. In
fact, I gained the impression that as the
cross examination
proceeded, accused two was simply making things up as he went along.
A good example of this is the photograph
produced whilst testifying
to demonstrate two apparent and slight bruises on his left arm, near
his elbow and on his bicep. He
maintained during his evidence that
this was caused from the assault upon him when he was in the garage.
However, during the cross
examination of the many witnesses who are
alleged to have assaulted him, he never put to any one of them any
form of assault which
might have caused these bruises. Thus, during
his evidence, and obviously on having found this photograph, he, for
the first time,
produced a version in terms of which whilst he was
being suffocated, his arms were severely pinched by various police
officers.
It is patently obvious that he made up this version in
order to accommodate the bruises and to make it look as though he was
tortured.
Strangely, no other injuries were pointed to either in the
photographs or elsewhere. Furthermore, when making one of his
confessions,
he indicated that this bruising had been caused during
the course of his arrest.
[111]
Accused three, once again, was a thoroughly unimpressive witness.
Right from the outset, he seriously contradicted
both accused one and
two regarding the question of their being made to “crawl on
their knees”. According to him, they
were placed in the cells
and pepper sprayed before they were once again released, taken to the
vehicular gate to the police station
and then made to crawl on their
knees from that gate to the cells. This is a completely different
story to that of accused one
and two who said that as they were
released from the truck within which they were conveyed from the
compound, they were made to
“crawl on their knees” to the
cells. Once again, there are number of contradictions between his
evidence and that which
was put to the various witnesses and there
are a number of matters which are of clear importance (as conceded by
accused three)
which were never put to the witnesses, indicating that
they were fabricated. Indeed, as accused three’s evidence
proceeded
and under cross-examination, he began adding a mass of
detail which had not been raised during his evidence in chief, or put
to
any of the state witnesses. His long and involved version as to
how he came to have knowledge of something he had not done, which
he
related in minute detail to Colonel Vakala when making his
confession, not only changed as his evidence proceeded but became

improbable in the extreme. Examples of this abound throughout his
evidence and the record will speak for itself. For example, his

lengthy narrative in the statement as to how and why Thandazile and
his co-accused had come to attack the police station, and rob
the
banks, is set out in minute detail over one and a half pages. Whilst
this is all one continuous narrative, accused three intimated
that
one portion thereof had come from the police (who had told him what
to say) and was therefore untrue, whereas the earlier
portion, as
part of the narrative, had “come from his mind” as he had
made it up, and it consequently was also not
true. This is extremely
improbable. Furthermore, a reading of this confession and his answers
to questions relating thereto, make
it quite clear that it was
impossible for accused three to have simply regurgitated what he had
been told to say by the police
as mixed with what he had been told by
Rigo and that which came from his mind, in such a clear and detailed
manner. In this regard
it must be remembered that the confession is
almost seven pages of closely written narrative which abounds with
detail. No one
in their right mind can accept that this was all
related to him by the police and otherwise as I have indicated. In
addition to
this, it is also highly improbable that the police, who,
according to accused three, were intent upon ensuring that he and his
co-accused were implicated in these crimes, told him to implicate
other persons such as Thandazile and Duva, who were deceased.
If the
police, as accused three would have this court believe, were
choreographing this entire false confession, with the sole
purpose of
ensuring that all five accused were implicated in all the crimes, why
not implicate them fully and why implicate other,
deceased, persons.
It simply does not add up. Finally in this regard, he said that Rigo
had explained everything that had occurred.
Despite this, when taken
through his lengthy confession, he maintained that all that he
related in the confession to do with the
crimes, came from the mouths
of the police officers. Had he said that the majority of it came from
Rigo who knew what had happened,
and the police had simply told him
to repeat this, his story may have had a degree of plausibility. On
his version, how could the
police ever have known all this detail in
order to relate it to him and in order for him to repeat it.
[112]
Furthermore, how and why the police would simply attack 40 or so
arrestees when they had no idea whatsoever as
to which of them had
been involved in the crimes boggles the imagination. On accused
three’s evidence they were all extensively
assaulted during the
crawling and otherwise even before he and his co-accused were
identified and interrogated in the garage. According
to him, in
addition, on no less than two occasions, pepper spray was sprayed
into the cell where they were all gathered in close
proximity to one
another. We have heard evidence in this court as to the serious and
deleterious effects of pepper spray. These
effects would remain with
those who were sprayed for a long period of time and would be obvious
to all. I cannot accept that the
police would have simply and
gratuitously done this with no purpose or gain in mind at all. It is
highly improbable. When a number
of these aspects were put to accused
three, he became evasive and generally tried to avoid the question.
There were also a number
of serious contradictions in his evidence
under cross examination as compared with his evidence in chief, and
with what he put
to the various witnesses. Furthermore, as he was
pressed more and more under cross examination, it became clear that
he was fabricating
in order to dig himself out of the various holes
he had dug for himself. I had no doubt whatsoever that accused three
was lying
extensively.
[113]
In coming to this conclusion, I took into account the fact that
accused three has not attended school and is semiliterate.
However,
the record will reveal that he is able to read reasonably well as he
demonstrated in court under cross examination, and
as he demonstrated
in cross-examining a number of witnesses and in particular the
commissioned officers with regard to the pro
forma portions of the
confession and pointing out.
[114]
As far as accused five was concerned, he maintained his composure and
demeanour during cross-examination to a
large extent but, once again,
the devil is in the detail. Whenever he was asked a tricky question
by Ms Mvandaba, he tended to
prevaricate and evade the issue. Similar
criticisms applied to his evidence as with the other accused and in
particular the major
contradictions between his and their evidence.
The most obvious example of this is the question of crawling as I
have dealt with
earlier. Accused 3 maintained that this had occurred
sometime after their arrival at the police station and after they had
been
incarcerated in the cells. According to accused three they had
subsequently been removed from the cells, made to go to the gate
and
from there to crawl back to the cells. During this, according to him,
there were excessive assaults of all kinds. According
to accused
five, this occurred immediately upon their egress from the truck when
they were made to crawl to the cells. The extent
of the so-called the
assaults and the manner thereof contradicted the testimony of the
other accused. As with the other accused,
accused 5 was
cross-examined on the content of his confession which he made to Col.
Mgolombane. He maintained during his testimony
that warrant officer
Diko had schooled him with regard to what he should relate to the
commissioned officer. When before Col. Mgolombane,
he had simply
related what he had been told by Diko and what he had been told by
Rigo. However, on cross examination it became
abundantly clear that
all the detail contained in the lengthy confession could never have
come from anyone but himself and that
it would have been quite
impossible for him to have taken the few statements made to him by
Diko, together with those made to him
by  Rigo, and to have
collated all this into one continuous narrative in the form of a
complete confession spanning some 9
½ pages of closely written
handwriting. On cross examination it became abundantly clear that all
of the detail contained
in the lengthy confession could never have
come from anyone, but himself.
[115]
There are so many examples of contradictions and improbabilities in
his evidence that I will only mention but
a few. He maintained that
he confessed to Mgolombane largely because two NIU officers remained
at the door and intimidated him.
He said that he feared these NIU
officers because NIU members had killed people at the Mancoba
compound when they were arrested.
However, under cross examination,
he said that the only reason he knew about such killings was because
he had heard this from the
police officers who testified in court. If
this were so, how could he have feared the officers at the time of
the confession on
26 February 2018? He was at pains from the early
stages of the trial to establish that he had appeared in the
magistrates’
court on Monday, 26 February 2018, and not on
Tuesday, 27 February 2018 as testified to by the state witnesses. The
evidence against
this is overwhelming. Not only did the police
officers testify to this but the charge sheet and transcript of what
occurred in
court on those two days confirms the state’s case
in this regard without doubt.
[116]
He maintained that he did not report the assaults to the magistrate
because, in his words, “I did not know
I was supposed to report
it to the court.” There is little doubt that, at least by that
stage, he had had his constitutional
rights explained to him on more
than one occasion. The state witnesses were clear that the SAP 14 (a)
document containing such
rights was explained to him and the other
accused. His warning statement itself was instrumental in explaining
such rights. Finally,
as conceded by himself, the magistrate herself
explained his rights to him. Of some interest in this regard is that
he did not
state that he was either frightened or intimidated at that
stage by police officers into not telling the court about the
assaults.
In the face of all this evidence one can simply not accept
his explanation which, in and of itself, points to the fact that
these
assaults did not happen. Once again, if his version had been
true, the magistrate would have explained his rights to him on the

Monday prior to his making the confession to Colonel Mgolombane.
Despite this, and despite his concession that the magistrate
explained his constitutional rights to him, he maintained throughout
that when he made the confession, he had not had his Constitutional

rights explained to him and this was indeed one of the bases for his
objecting to the admissibility of the confession. In light
of all
this, I had little hesitation in rejecting accused five’s
evidence.
[117]
I will deal briefly with the defence witnesses. Suffice it to say
that there were numerous contradictions between
their evidence, and
that of the accused. As far as Nafika Poswa was concerned, he, once
again, made out that the police simply
attacked the compound on
Friday night without provocation. There was no indication from him of
any aggression whatsoever from members
of the compound towards the
police. I have already dealt with this aspect, and it is clearly
false. He raised several other aspects
which either contradicted the
accused’s versions or amounted to new evidence. For example,
for the first time we heard of
what were referred to as “frog
jumps” being ordered by the police on arrival at the police
station. Various aspects
of his evidence as to things which happened
during the fracas at the compound, such as Xolisa being taken away
and shot, had not
been mentioned before and were of such importance
they would undeniably have been observed by the accused had they
indeed happened.
Brigadier Govendor was an excellent witness. I have
no doubt that I can accept his evidence in its entirety. However,
once again,
he was criticized, and allegations were made that he made
serious threats against the detainees at the compound. This was also
not mentioned by the accused. I can go on and on but it is
unnecessary.
[118]
I have already dealt briefly with the evidence of Lwandiso Poswa. He,
likewise, contradicted himself and the accused.
I gained the distinct
impression, as he alluded to himself, that since he had given
evidence in the main trial, he had interacted
with others and had
decided to change his version in many respects. For example, he spoke
of seeing flies all around accused two
which had never been mentioned
before. He also mentioned that accused two’s pants were wet at
the back which had not been
mentioned before. Also, why was this not
mentioned by accused two to Colonel Homoyi or Constable Mnguni? To my
mind the most telling
aspect of his evidence which indicated that he
had been influenced in such a way as to assist at the accused’s
case was his
evidence as to the signature on the statement taken by
Captain Sigcu. Until he gave evidence in the trial within a trial, it
was
not in doubt and remained unchallenged that that statement had
been signed by him contemporaneously upon it having been completed,

and sworn to on 25 February, 2018. However, he became adamant that he
had been sent back to the compound only to return on the
Monday in
order to sign the statement. This is palpably false. Not only did he
contradict his evidence in the main trial, but it
contradicted all
the interwoven evidence in the state case. His statement became the
single most important piece of evidence that
the police had after all
the male persons had been detained which, for the first time, gave
the investigators an insight into which
of these 40 odd detainees had
been involved in the various crimes. Captain Sigcu took that
statement. He is a seasoned campaigner
when it comes to
investigations of this type. There is little doubt that he would have
ensured that the statement was full and
complete in every respect as
soon as possible. It was a vital piece of evidence and no
investigator worth his salt would have left
such written document for
signing a few days hence. In fact, Sigcu saw to it that Poswa swore
before him that it was indeed the
truth, thereby converting the
statement into an affidavit which would carry much more weight in the
event that Poswa had absconded,
or otherwise disappeared.
[119]
Likewise, I was not impressed with the evidence of Mafikwana. I have
already dealt with the material portion of
the evidence of Ms. Booi.
[120]
During the course of their evidence, and particularly during their
argument, the accused seemed to develop their
case from the initial
contention that they were simply assaulted in the garage in order to
make the confession, to various other
aspects such as not having been
fed, having been weak when they made the confessions and thus not in
their sound senses, accused
one having been sleepy, the psychological
effect of the shooting, lengthy questioning, escorting police
officers toting firearms
and intimidating them to handcuffs and leg
irons being too tight. It was as if they created their case as they
went along. Furthermore,
they maintained that their arrest was
unlawful. Whether it was or not is neither here nor there as far as
this court is concerned.
As regards the trial within a trial, I was
only concerned with the question of admissibility. Had their arrest,
and in particular
that of accused five who argued this vociferously,
been technically unlawful, it could not have affected such
admissibility. They
were clearly apprised of their rights on Saturday
afternoon, again during their interviews and during the completion of
the pro
forma documents dealing with both confessions and pointings
out. In any event, this was a most unusual situation. The police were

forced in the circumstances, bearing in mind that they were shot at
and forced to retaliate, to take all the males as suspects.
At that
stage they only knew that the suspects resided at the compound, a
fact which was confirmed by the barrage of bullets they
encountered
on their arrival. The detainees were later on Saturday read their
constitutional rights by way of a collective address
by Constable
Ntsevu. I cannot see anything amiss with this. It was clearly
untenable to go through each and every suspect and to
repeat their
rights over and over. Why should they not have been read out
collectively?
[121]
I accordingly concluded that the evidence of the state as to how it
came about that the accused made their confessions
and pointings out
was the truth, and that the accused’s version in this regard
was false.
On the accused’s
version, it would have taken an enormously complicated and
well-choreographed machine to have set all this
up such that each and
every commissioned officer was in on the subterfuge and aware as to
what was going on, so that they could
take the confessions and deny
the accused their rights. For this to have been done at all would
have been amazing, let alone for
it to have been done within such a
short space of time and bearing in mind that no less than twelve
commissioned officers, from
various outlying points from Ngcobo,
would all have had to be coerced and coordinated into this incredible
conspiracy. Whilst anything
of course is possible, it seems to me
that it would be improbable in the extreme for the investigators to
have set all this up
and to have achieved such a result with no one,
not even one of the commissioned officers all of whom came across as
extremely
independent and good witnesses, spilling the beans as to
what was happening.
[122]
A further vitally important aspect which appears from the objective
evidence before the court, is the fact of
the discovery of the
offences committed at Cala and Butterworth with which accused two and
accused three are charged. The investigators
knew nothing of these
cases. The cases themselves were unsolved as the perpetrators could
not be identified. Their evidence that
they only came to know thereof
from the confessions must be the only truth. How, in the
circumstances, can it be argued or accepted
that the police told the
accused what to say, which was simply regurgitated before those
commissioned officers?
[123]
Also, it was asserted by some of the accused that had they been given
the option to make their confessions to
a magistrate, they would have
done so but were not prepared to do such before the commissioned
officers. The main reason given
for this was that they would then
have told the magistrate/s of the assaults etc. but were not prepared
to do so to the commissioned
officers as they were complicit and part
of the police services whose colleagues had been killed. If this were
so, why did they
not raise this before the magistrate in court?
[124]
As regards the aspect raised as time went by of the killing of
civilians on the previous Friday night having made
them fearful of
the police and this having been a major contributing factor to their
having not been free when they made the confessions
and pointings
out, there are in essence two answers. Firstly, there is little doubt
that the accused’s version in this regard
is incorrect. The
police officers who attended at the compound on the Friday night were
there to arrest potential suspects and
were under the supervision of
senior members of the police force. There was no reason at all for
them to simply let loose and shoot
what, on the defence version, were
mainly innocent civilians, including women and children. The police
were aware that it was a
relatively small band of young men that
attacked the police station. There were many people at the compound
including elderly men,
women and children. It is probable beyond
doubt, as testified to by the police officers, that they were
attacked and retaliated
accordingly. Hence some of the police
officers were injured, as were some members of the Mancoba compound.
[125]
Secondly, can it be said that even on the state’s evidence,
these actions instilled a degree of fear in
the minds of the accused,
such as to negate their statements and pointings out being made
freely and voluntarily? It must be remembered
that the accused did
not rely on this at the outset of the matter, and it was not raised
as a ground of objection. It appeared
to develop over time as the
case progressed. If, as I have found, the alleged torture in the
garage did not take place, and if
indeed they were fearful because of
this, why did they not raise it with the many commissioned officers
who testified? It was not
raised with them when the confessions and
pointings out were taken. Also, why did they not mention this to the
magistrates before
whom they appeared? The only conclusion I could
come to beyond doubt was that this was not the case and that they
were not in fear
as a consequence of the occurrences of the previous
Friday night.
[126]
It was also rather disturbing that almost every accused denied that
he had been taken to the relevant commissioned
officer by police
officers other than the officer the state called to testify, as
confirmed by the relevant commissioned officers
concerned. Indeed,
all the police officers who took the accused to and from the
confessions were independent of the investigation
of this case. The
commissioned officers themselves were entirely independent and knew
nothing about the case. Why would all these
witnesses lie? What would
they stand to gain from this? And, how could the investigating
officers manage, once again, to arrange
all this in such a short
space of time? It would have been a mammoth and well-orchestrated
undertaking to use certain officers
but to make out that other
officers had performed these duties, and to create false entries in
OB books to further this false narrative.
It almost appeared that the
accused were attempting to create an alternative parallel reality.
[127]
I should deal with one further aspect raised in argument by accused
five. He maintained that the trial had been
unfair for various
reasons. This is not true. The state provided the defence with the
entire docket plus many more documents whenever
requested to do so.
In this regard accused five appeared largely to blame the state for
any problem he perceived. The state is
not there to assist in the
conduct of the defence case where the accused refuse legal
representation. Such legal representative,
had he been appointed,
would have sourced any necessary evidence on behalf of accused five.
As it was, the court bent over backwards
to assist and accommodate
all the accused. This will be evidenced by a perusal of the record.
Furthermore, the accused were all
given way more than the usual time
both to present their cases and to advance their arguments. Finally
in this regard, the record
will disclose that all the accused were
fully involved in the case and in the cross examination of all the
state witnesses. They
were given extensively leeway in this regard,
which would probably not have been given had they been legally
represented.
[128]
I should at this stage deal with what the appeal court said in the
case of
Gcam Gcam
which I quoted earlier in this
judgment. It was said that courts should be sceptical when the state
seeks to use a confession against
an accused which he repudiates at
the first opportunity he is given. There is no evidence whatsoever
that any of the accused repudiated
any of their confessions etc. at
such first opportunity, or during further opportunities given. The
first opportunity was their
appearance in the magistrate’s
court. They appeared later in that court and have not tendered any
evidence to the effect
that they repudiated their confessions. On the
contrary, at the subsequent bail application accused three indicated
that he would
plead guilty to the charges and the clear tenor of
accused two’s evidence was to the same effect. They largely
admitted to
many aspects of these crimes, such evidence on its own
amounting to a further confession. The other accused were apparently
in
court during these proceedings and did not themselves indicate
that they had nothing to do with this.
[129]
As regards the statement that it is generally unlikely that a person
facing serious charges would voluntarily
confess, in my view there
are several safeguards in this case which indicate that the accused
did indeed voluntarily confess. Firstly,
as I have indicated, there
is the bail application where accused two and three in effect made
further confessions in a court of
law sometime down the line. The
other accused were present and did not contradict this. Secondly, I
have already found that the
state evidence is simply overwhelmingly
in favour of the accused having been lawfully processed with their
constitutional rights
explained and their having confessed. This is
fortified by the state evidence to the effect that one or more
accused indicated
that they did not believe in their constitutional
rights and that their religion dictated that they should tell the
truth. There
is further corroboration in that when accused three
confessed to Colonel Vakala, and was asked as to why he wanted to
make a further
statement, he told the colonel that he wished to do so
in order to receive a more lenient sentence. It is likely that all
four
of them harboured a similar attitude. Once again, for the police
to have contrived all of this during the short space of time so
as to
develop a false narrative is clearly false beyond doubt.
[130]
It is for these reasons that I made the ruling that the various
confessions and pointings out made by the accused
were admissible in
these proceedings.
[131]
It was subsequent to this ruling that accused 4’s trial was
separated and we only remain with accused 1,
2, 3 and 5.
[132]
The state then led the evidence of the various commissioned officers
who dealt with the actual confessions and
pointings out that had been
ruled to be admissible. These were:
1.
Col.
Runeyi
who dealt with a confession made by accused 1, exhibit
PP1;
2.
Col.
Mute
who dealt with the pointing out made by accused 1, exhibit
WWI;
3.
Col.
Ntatsha
who dealt with a confession made by accused 2 relating to
counts 1 and 2, exhibit EEE1;
4.
Col.
Mkhupa
who dealt with the pointing out made by accused 2, exhibit
UU1;
5.
Col.
Homoyi
who dealt with a further confession made by accused 2,
exhibit RR1;
6.
Col.
Mohamet
who dealt with a confession made by accused 3, exhibit
BBB1;
7.
Col.
Vakala
who dealt with a further confession made by accused 3,
exhibit QQ1;
8.
Col. Ndzamela
who dealt with the pointing out made by
accused 3, exhibit ZZ;
9.
Col.
Nani
who dealt with the pointing out made by accused 5, exhibit
CCC;
[133]
The state also led the evidence of the various police officers who
took photographs at the pointings out by the
various accused and the
relevant albums were handed in as exhibits.
[134]
Warrant officer
Zigayi
testified with regard to the forensic
examination of the scene outside Capitec bank and as to the various
exhibits she collected,
in particular relating to potential DNA
evidence. She gave the various seal bag numbers which are relevant in
this regard.
[135]
The state also handed in two medical reports (J 88), one relating to
the victim in Count 1 and the other relating
to the victim in Count
16, as exhibits UUU and VVV.
[136]
The state further led the evidence of Capt. Mayongo who testified
that amongst the recovered firearms there was
one that had been taken
from Constable Sulundwane in Cala. He tried to take a statement from
her but could not do so as she was
too upset.
[137]
Thereafter the state bought applications for the admission of accused
five’s confession without the evidence
of the Colonel who took
the confession as he has since died, and for a certain confession
made by accused one to a certain Sergeant,
to be admitted. These were
duly argued, and I ruled that accused five’s confession could
be admitted but that accused one's
confession was not admissible.
[138]
During the trial the state led extensive evidence relating to the
forensic examination of the various scenes and
the evidence such as
firearm cartridges found at each scene. It further led full evidence
relating to the chain evidence of these
exhibits as they made their
way to the forensic and ballistic laboratories. Furthermore, the
state placed the evidence of the findings
of, in particular, the
ballistic experts in this regard before the court. Also, various
photograph albums were prepared and placed
before the court by
certain of these witnesses. It is not necessary to summarize chapter
and verse of this more formal evidence.
During the state case the
post–mortem examination reports relating to each deceased
together with the S212 affidavits and
the necessary allied evidence
was also handed in.
[139]
The State thereafter led the evidence of the photographer who
attended on accused 1’s pointing out and closed
its case.
[140]
The accused’s rights were again fully explained to them,
including their right to apply for a discharge
at the end of the
state case. In the event all four accused applied for their discharge
in terms of section 174 of the CPA which
applications were refused
based on reasons given at the time.
[141]
The four remaining accused testified in their own defence. Accused
three and accused five called witnesses to
support their alibis.
Accused three called one Mr. Gemi, and accused five called Mr. Monco,
the father of accused one. All four
accused solemnly affirmed the
truthfulness of their testimony as they again indicated their
religious objection to taking the prescribed
oath.
[142]
Accused one
testified that during the night of 20 – 21
February 2018, he was asleep in his bed at the Mancoba residence. He
had gone
to bed in the compound shortly before midnight before which
he had been watching a championship soccer game between Barcelona and

Chelsea. Prior to the game, from about 19H30, he had been watching
movies on television. He had not left the compound that entire
night.
He accordingly denied any involvement whatsoever in the police
killings.
[143]
It was only the next morning, when he watched the news on television,
that he had learned about the attack on
the police station and the
other events which formed the backdrop to the charges in this case.
He was also later informed about
these events by Thandazaile, Duva
and Rigo. He denied the evidence of Tatsi implicating him in these
events and in the planning
thereof, as also the evidence of Lwandiso
Poswa.
[144]
Accused two
, likewise, denied any involvement in the police
killings. He testified that he had similarly been watching the soccer
game at the
Mancoba compound during that evening. He slept in the
room where the television was situated, and not in the separate room
where
accused one slept. There were about 15 men sleeping in that
room. He woke at about 09H00 and, similarly, learned of the police
killings from the news on television. He denied any involvement in
the planning as testified to by Tatsi and maintained that Tatsi
had
falsely implicated him. He also denied any involvement in the crimes
committed against the policeman and woman at Butterworth
and Cala
respectively and had not been present there. He also denied that
there had been a meeting as testified to by Lwandiso
Poswa on the
Thursday following the police killings.
[145]
As regards Tatsi’s evidence, he maintained that someone had
influenced Tatsi. He knew this because he had
known Tatsi well and
Tatsi would never have testified against him like this without being
influenced thereto.
[146]
Accused three
similarly maintained that he had only heard of
the police killings from the news on television the following
morning. He had, during
the course of the previous night, remained at
the compound and had slept there. He was not involved in these
events, and neither
was he involved in their planning. He also denied
Tatsi’s evidence saying that he had been influenced, and denied
Poswa’s
evidence regarding the meeting.
[147]
He called a witness,
Nyameko Gemi
, who largely confirmed his
evidence, and that of accused one and two. After the soccer game,
Gemi had continued with his duties
in making a fire and tending to it
until the early hours of the morning. Whilst he was there, he had
heard gunshots emanating from
the area near Nyanga school. He had
been shocked but decided to ignore them as they had not come from the
Mancoba premises. He
also denied the evidence of Poswa about the
meeting saying that, had it occurred, he would definitely have known
about it as he
was always apprised of any important happenings in and
around the compound.
[148]
Accused five
similarly denied any involvement in the police
killings. His evidence was to the effect that he, together with Mr.
Monco, a person
called de Klerk, Mikhail and others stuck to a daily
routine which occurred at 21H00 and again at 05H00 when they would
walk up
the mountain situated near the compound to pray. This they
did religiously on the night of the police killings.
[149]
On his return from the evening session, he had gone to bed and had
slept in the same bed as Mr. Monco, his witness.
Approximately 10
people slept in this room including him and Mr. Monco. He had at no
stage left the compound that night. During
the morning session, on
their return from the mountain, Mikhail had noticed a group of people
situated near the Nyanga school.
This had been unusual. He had
similarly learned of the police killings from the television
coverage.
[150]
As foreshadowed earlier, accused 5 called one witness,
Mongesi
Monco
, who is the father of accused one. He knows accused five
well from the church. He corroborated the evidence of accused five to
the effect that the pair of them occupied a single bed in a certain
room together with other people at the compound. During the
night of
the 20
th
– 21
st
of February 2018, accused
five had been sleeping in that bed all night with him and had not
left the room. He also confirmed accused
five’s evidence about
praying on the mountain during the evenings and early mornings. It
was only the following morning,
on 21 February 2018, that he had
learned of the police killings. He further stated that he had been
shocked when he was also arrested
along with many other males from
the compound and it was alleged that he had also killed the police
officers. Under cross examination,
he maintained that upon his arrest
and detention at the police station, he and certain others had,
during the evening of Friday,
23 February 2018, been taken out of the
cell, assaulted in a garage and forced to confess to the murders.
Because of the severe
assault and because he did not want to die, he
maintained that he had confessed to the murders, but had nonetheless
been released
without charge.
[151]
That then was the case for the accused.
[152]
It has become clear in this case that the question which exists
between the state and the defence is as to whether
the accused were
involved in the events giving rise to the charges. The state has led
extensive evidence as to the occurrences
at all of the scenes most of
which has not been materially contested by the accused because they
denied having been involved. There
can be little doubt that indeed
the offences as described by the state witnesses at Butterworth,
Cala, Nyanga High School, Ngcobo
police station and in the vicinity
of the banks in Ngcobo, actually happened and happened in accordance
with the sequence of events
as described by these witnesses. As has
been repeated over and over again, the onus has rested on the state
throughout to prove
the involvement of the accused in these events
beyond a reasonable doubt.
[153]
It is as well to bear in mind at this stage the proper approach to
evaluating evidence in a criminal case of this
nature.  The
following statements of the law in this regard are particularly
apposite to the present matter. Malan JA in
R
v Mlambo
[4]
(approved in S v
Phallo and Others
[5]
)
set forth the correct approach as follows:
''In my opinion, there is
no obligation upon the Crown to close every avenue of escape which
may be said to be open to an accused.
It is sufficient for the Crown
to produce evidence by means of which such a high degree of
probability is raised that the ordinary
reasonable man, after mature
consideration, comes to the conclusion that there exists no
reasonable doubt that an accused has committed
the crime charged. He
must, in other words, be morally certain of the guilt of the
accused."
[154]
In the case of
Magadla v The State
(80/2011)
[2011]
ZASCA 195
(16 November 2011)
the SCA had occasion to say the
following regarding the assessment of the evidence of a single
witness:
“
It is trite that
the State has to prove its case against an accused beyond a
reasonable doubt and the evidence of a single identifying
witness
must be clear and satisfactory in all material respects. But it must
not be forgotten that the court must have regard to
all the evidence
including that of an accused….. On the question of having
regard to all the evidence Nugent J remarked
as follows in S v Van
der Meyden
[6]
:
The proper test is that
an accused is bound to be convicted if the evidence establishes his
guilt beyond a reasonable doubt, and
the logical corollary is that he
must be acquitted if it is reasonably possible that he might be
innocent. The process of reasoning
which is appropriate to the
application of that test in any particular case will depend on the
nature of the evidence which the
court has before it. What must be
borne in mind, however, is that the conclusion which is reached…
must account for all
the evidence’”
[155]
The following statement of the law by Nugent AJA in S v Mbuli
[7]
is also instructive in assessing evidence in a case of this nature:
“
It is trite that
the State bears the onus of establishing the guilt of the appellant
beyond a reasonable doubt, and the converse
is that he is entitled to
be acquitted if there is a reasonable possibility that he might be
innocent. . . . (I)n whichever form
the test is applied it must be
satisfied upon a consideration of all the evidence Just as a court
does not look at the evidence
implicating the accused in isolation to
determine whether there is proof beyond a reasonable doubt, so too
does it not look at
the exculpatory evidence in isolation to
determine whether it is reasonably possible that it might be true.'
And
later, in quoting Moshephi & Others v R
[8]
:
“
Doubts about one
aspect of the evidence led in a trial may arise when that aspect is
viewed in isolation. Those doubts may be set
at rest when it is
evaluated again together with all the other available evidence. That
is not to say that a broad and indulgent
approach is appropriate when
evaluating evidence. Far from it. There is no substitute for a
detailed and critical examination of
each and every component in a
body of evidence. But, once that has been done, it is necessary to
step back a pace and consider
the mosaic as a whole. If that is not
done, one may fail to see the wood for the trees.'
[156]
The evidence which implicates the accused subsists in their
confessions and pointings out, the evidence of Lwandiso
Poswa, the
evidence of Tatsi and indirectly, the ballistic evidence. I have
already dealt extensively with the reasons as to why
I admitted all
the confessions, and the pointings out. No further evidence has been
led which makes me doubt this conclusion. On
the contrary, the
evidence has become stronger in that Tatsi has further put the lie to
the question of assaults for the purposes
of obtaining the
confessions etc. He further testified that the accused solicited the
evidence of the witnesses whilst pointing
out what they should say.
All in all, and despite the extensive arguments by the accused to the
contrary, I am entirely satisfied
that the state has established
beyond a reasonable doubt that all the confessions and pointings out
made by the accused before
court were made freely and voluntarily by
them, and in their sound and sober senses.
[157]
As regards the evidence of Lwandiso Poswa, he gave evidence twice
during these proceedings. He testified in the
main trial, and
thereafter in the trial within a trial. Although the trial within a
trial is separate from the main trial, I am
fully alive to the fact
that I have already dealt with Poswa’s evidence in the trial
within a trial and have found it wanting.
I have given full reasons
for this conclusion. I therefore approach the evidence of Poswa in
the main trial with a degree of caution.
[158]
However, it must be remembered that he testified in the main trial
sometime before the trial within a trial. Additionally,
I found
during the trial within a trial that Poswa had clearly been in
contact with the accused and had been influenced for one
reason or
another to change his evidence. It is apposite to repeat what I said
in this regard:
“
I gained the
distinct impression, as he alluded to himself, that since he had
given evidence in the main trial, he had interacted
with others and
decided to change his version in many respects. For example, he spoke
of seeing flies all around accused two which
had never been mentioned
before’. He also mentioned that accused two’s pants were
wet at the back which had not been
mentioned before. Also, why was
this not mentioned by accused two to Colonel Homoyi or Constable
Mnguni?”
[159]
This view was subsequently confirmed by Tatsi when he testified in
the main trial.
[160]
His evidence in the main trial relating to the question of the
meeting where Thandazaile, in response to the question
by Xolisa as
to who had been involved in the killings, had admitted his guilt and
accused one, two and three amongst others had
thereafter moved to
stand next to him, was given long before the trial within a trial. He
further gave evidence which was to a
degree in favour of accused two.
[161]
In view of these factors, and had Poswa’s evidence stood alone,
it may have been subject to criticism. However,
it does not stand
alone. It was fully corroborated in this regard by Tatsi and, indeed,
the confessions of the accused. Furthermore,
there is little doubt
that he was consistent with regard to the evidence of the meeting as
it was indeed these facts which he gave
to the investigators a few
short days after the incident causing them to suspect the accused. It
was also something out of the
ordinary which he would have recalled
in detail. A further aspect which underscores the veracity of his
evidence relating to the
meeting is the fact that he said that it was
only Thandazaile who spoke in admitting guilt, accused one, two and
three and others
had merely walked over to him and had stood in
solidarity with him. Had he falsely implicated them or had he for any
reason fabricated
this evidence, why would he have not simply said
that all of them had vocally admitted their guilt? I am entirely
satisfied that
in all the circumstances I can accept the evidence of
Lwandiso Poswa in the main trial.
[162]
As regards Tatsi, he was an accomplice. Accordingly, the courts have
developed a set of rules requiring the trier
of fact to apply caution
to such evidence. The court is thus obliged to approach Tatsi’s
evidence with a degree of caution
bearing in mind what was said in
R
v Ncanana
[9]
:
“
What is required
is that the trier of fact should warn himself, or if the trier be a
jury, that it should be warned of the special
danger of convicting on
the evidence of an accomplice; for an accomplice is not merely a
witness with a possible motive to tell
lies about an innocent accused
but is such a witness peculiarly equipped, by reason of his inside
knowledge of the crime, to convince
the unwary that his lies are the
truth.”
[163]
Having said this, it is also so that the court must look holistically
at all the evidence before it. The best
form of insurance that an
accomplice is telling the truth is corroboratory evidence, in this
case, corroboration of the fact that
the accused were indeed
involved.  However, the lack of such corroboration will not
necessarily result in a rejection of such
evidence if certain other
features are present such as the mendacity of the accused and where;
“
The trier of fact
understands the peculiar danger inherent in accomplice evidence and
appreciates that acceptance of the accomplice
and rejection of the
accused is, in such circumstances, only permissible where the merits
of the former as a witness and the demerits
of the latter are beyond
question.”
At
the end of the day, it is:
"necessary that the
Court should be satisfied beyond reasonable doubt that in its
essential features the story which he tells
is a true one. If more
than that were required the administration of justice would in many
cases be rendered impossible."
[10]
[164]
Tatsi was nothing short of an excellent witness. I am fully alive to
the fact that, having been present when many
of these crimes were
committed, he is in a position (as argued by the accused) to simply
substitute other persons who may have
been involved, with the
accused. I accordingly observed him closely in the witness box and
have examined his testimony minutely.
He gave evidence in a fluent,
logical and clear manner and was consistent throughout. Regarding the
question of consistency, he
was cross-examined extensively by all
four accused and his factual evidence remained entirely consistent
with that given during
his evidence in chief. At no stage did he
waiver. In fact he became quite irritated with the continued,
harassing and repetitive
cross examination saying things like “
if
you had listened properly to my evidence in chief,…”.
During such cross examination, especially that of accused 5, his
evidence only became all the more compelling with his spontaneous,

emotional responses and detailed explanations. In my view, he had all
the hallmarks of a truthful witness. His demeanour was extremely

positive, and he came across strongly as a person who simply wanted
to cleanse his conscience of all the bad things he has done,
and
indeed to explain to the court exactly why he had lied under oath
during the trial within a trial. The particulars which this
witness
laid before the court during his extensive testimony are in
themselves a testament to his intelligence and veracity. It
is those
details, consistently related to the court over a period of time,
which are the hallmark of a truthful witness. I have
little doubt
that he was telling me the truth. Furthermore, there is absolutely no
reason whatsoever as to why he would seek to
implicate any one of the
remaining accused if indeed it had been other persons involved in
these crimes, and not the accused themselves.
His evidence was
largely corroborated by other evidence such as that of Poswa, the
confessions and pointings out of each of the
accused and indeed by
the police witnesses themselves. He was also to a degree corroborated
by the accused themselves in that they
appeared to have, under cross
examination, conceded that accused 1, 2 and 3 had indeed accompanied
Thandazile to Cape Town, although
in their evidence they sought to
alter this entirely.
[165]
It is of importance in a matter like this to recall that Tatsi is not
a witness to whom section 204 of the CPA
applies. This does not mean
that he is not an accomplice. It simply means that he does not have
to be warned to tell the truth
on pain of prosecution should he not
do so. He has been convicted of these offences. Whilst I am unaware
as to what sentence he
has received, the fact of his convictions has
been established in evidence. Accordingly, when he testified in this
court, he did
not do so in the belief that he might lull the court
into believing his evidence in order to obtain indemnity from
prosecution.
In other words, there was very little incentive, if any,
for him to lie. Certainly, there can be no incentive for him to have
lied
about his own involvement. What incentive could there be for him
to have included the four accused as perpetrators? It seems highly

improbable that he would simply substitute them for others when he
has no axe to grind against them. The accused of course bear
no onus
to prove why he would lie about them, but at the very least one would
expect some basis to be laid for an argument that
Tatsi might falsely
implicate them. It is improbable in the extreme that he would simply
implicate them on a whim. He is fully
alive to the consequences
theeof, having been convicted and sentenced himself.  I have
little doubt that, having cautioned
myself with regard to his
evidence, I can in all the circumstances accept the evidence of Tatsi
without reservation.
[166]
Turning then to the forensic evidence, Ms. Mvandaba has, at the
request of the court, placed before the court
a fully detailed
document in which she has itemized, in precise detail, all the
evidence relating to the collection of the various
exhibits, such as
cartridge casings and firearms, from the various different scenes.
She has also dealt in minute detail with all
the chain evidence
relating to the submission of these exhibits to the various
laboratories for forensic examination. She has further
dealt with the
results of these examinations, all of which evidence was placed
before the court during the trial. Finally, she
has highlighted the
conclusions reached by the various experts in this regard, and their
relevance to this case. This document
was read into the record during
argument.  As this judgment is already lengthy, I do not intend
to set it out in any great
detail. Suffice it to say that this
evidence was not challenged in any material manner and her
conclusions are fully supported
by the evidence which conclusions
have been established beyond a reasonable doubt. I have given this
document an exhibit number
(“ZZZ3”) and retained it in
the file for reference purposes.
[167]
From this evidence, the following has been established:
·
An R5 Rifle with the serial number 3[…] which belonged to
Constable
Mateta fired two shots at the crime scene next to Inyanga
Senior Secondary School. Mateta is the complainant in count five and
the deceased in count seven.
·
A 9 mm pistol with serial number T[…] fired one shot at the
same
scene, and belonged to warrant officer Qwaqwa, the complainant
in count one.
·
A 9 mm pistol with serial number Q[…] fired one shot at the
same
scene, and belonged to Constable Ntsheku, the complainant on
count four.
·
Constable Mateta’s R5 rifle fired 19 shots at the scene outside
the
front of the banks.
·
Ntsheku’s 9 mm pistol fired five shots at that scene.
·
Qwaqwa’s 9 mm pistol fired one shot at that scene.
·
An R5 rifle with serial number 8[…] which was issued to
Constable
Limane fired 10 shots at that scene.
·
Mateta’s rifle fired five shots outside and in front of Pep
Stores.
·
Mateta’s rifle also fired three shots at the Ngcobo Police
Station.
·
A 9 mm pistol with serial number H[…] issued to Constable
Sulundwane
fired four shots at that scene.
·
Ntsheku’s pistol fired six shots at that scene.
·
Qwaqwa’s pistol fired two shots at that scene.
·
A 9 mm pistol with the serial number W[…] owned by the late
Constable
Sandlana fired one shot at that scene.
·
Constable Limane’s 9 mm pistol with serial number Q[…]
fired
six shots at that scene.
·
The rifle robbed from the late Constable Mateta was again used at the
Mancoba
compound on 23 February 2018.
·
The rifle issued to Constable Limane with serial number 8[…]
was
also used at that scene.
·
Qwaqwa’s pistol was used at that scene.
·
Sulundwane’s pistol was used at that scene.
·
Sandlana’s pistol was used at that scene.
·
A pistol robbed from Constable Nyikisa with serial number Q[…]
was
also used at that scene.
[168]
Whilst this evidence does not, of itself, directly implicate the
accused it is of importance in several respects.
Firstly, it serves
to corroborate the fine detail placed before the court by Tatsi and
corroborates and is in line with the confessions
made by the four
accused. Secondly, it establishes that the firearms taken from the
earlier robberies at Butterworth, Cala, Nyanga
school and the Ngcobo
police station mostly ended up at the Mancoba Compound where the four
accused lived, and by their own admission
had been present at during
the period 20 February 2018 to 23 February 2018 when the firearms
were seized by the police during the
raid on the compound. This is
important corroboration and once again establishes that the witness
Tatsi is not only a truthful
witness but is an intelligent man who
has a very good memory for detail. In my view, these events clearly
made such an impression
upon the young Tatsi that they became
indelibly imprinted in his mind.
[169]
I turn now to deal with the evidence tendered by the accused. All
four accused put up alibis for the first time
during the trial in
their testimony. Whilst, in chief, they appeared to put forward such
alibis with confidence, under cross examination
this confidence was
slowly eroded, and it became clear that they were not telling the
truth.
[170]
Dealing firstly with the question of their alibis, it is astounding
that these were raised for the very first
time when they testified.
Because the accused in this matter have not been legally represented,
I am prepared to give some leeway
regarding the strict letter of the
law. Regarding the question of an alibi, it is at least incumbent on
the accused to raise such
an alibi at an early stage for various
reasons. Firstly, if it is not, the proponent of the alibi lays
himself open to the assertion
that it is a recent fabrication.
Secondly, by doing so, the state is apprised of the alleged alibi at
an early stage and can investigate
it. This can have one of two main
consequences: the state may investigate and establish that indeed the
alibi is true in which
case the charges would almost certainly be
withdrawn. On the other hand, the state would have an opportunity to
call witnesses
to dispute the alleged alibis should it be establish
that such are untrue. Indeed, accused five attempted to use this to
his advantage
in argument by arguing that there had been no evidence
about him not sleeping in the same bed with Mr. Monco, or evidence as
to
where he had slept in the compound. This exemplifies the rearguard
manner in which these alibis have been raised. If indeed he had

raised this alibi at the outset, as he ought to have done, the state
may well have investigated this further and produced evidence
in that
respect.
[171]
I have already referred earlier to the case of
Magadla
v The State
which
is a judgment of the Supreme Court of Appeal. The judgment appealed
against
[11]
was penned by me
and was concurred in by Petse ADJP as he then was. That judgment was
confirmed by the SCA, and a petition to the
Constitutional Court was
refused. In that judgment I said:
“
It appears to me
that the majority of the Constitutional Court did not however disturb
the common law existing prior to that judgment
in dealing with the
failure of an accused to disclose his alibi defence after the
commencement of his trial and before the State
closes its case.
In particular, it seems to me that the law as stated in Zwayi’s
case in this regard, namely that where
an accused chooses not to
disclose such particulars during the course of the State case and to
raise the alibi for the first time
during the course of the defence
case, the court is entitled to consider this fact in evaluating all
the evidence before it and
in deciding what weight it should attach
to the alibi raised by the accused, is still of application.  As
stated by Ebrahim
AJ in Zwayi’s case, in these circumstances
"
the
value to be accorded to the alibi may be adversely affected.
"”
[12]
[172]
In giving as much latitude as I can to the accused in this regard, it
seems to me that in assessing all the evidence
one must take into
account the question of basic human nature. It seems to me that any
normal person who is falsely charged with
an offence to which he has
a truthful alibi, would raise it at the first opportune moment.
Surely, this is a natural human reaction?
Even if a such alibi is not
raised immediately, it would surely be raised as soon as possible and
mentioned either before such
person is prosecuted, or at the earliest
possible stage during the trial. It stands to obvious reason, to my
mind, that in a trial
of this nature which spans a period of some 5
to 6 years, one would expect a truthful alibi to have been brought to
the court’s
attention at the earliest possible time. This is
equally so with accused who are not legally represented. This
question is compounded
by the fact that all four of the accused do
not lack in intelligence. The record will demonstrate that they are
fully capable of
cross-examining witnesses and arguing their cases to
the extent of referring me to various provisions of the Constitution.
When
one adds this fact to the mix, it becomes all the more
astounding that their various alibis were not raised earlier during
the
trial. At the very least, when Lwandiso Poswa testified at a
fairly early stage of the trial, he being a member of the church who

lived at the compound, one would have expected the accused to have
put their alibis to him for him to have commented thereupon.
It must
be remembered that at that stage not much more than a year and a half
had elapsed since the police killings and he may
well have been able
to remember something about their alleged alibis or have been able to
reject them. Had these alibis been truthful,
they would have been
foremost in the minds of the accused at the time of cross-examining
this witness, and Tatsi. The fact that
they were not cross-examined
on the alleged alibis leads ineluctably to the conclusion that these
alibis were not foremost in their
minds because they  were
recent fabrications. The only possible alternative conclusion is that
they had thought of these alibis
but deliberately did not put them to
any witness because they did not wish to provoke a negative answer to
their cases.
[173]
In all the circumstances, the very fact of the accused raising these
alibis at such a late stage without their
having been foreshadowed
during the trial, must be taken into account against them.
[174]
Under cross examination, and when pushed with regard to
inconsistencies and contradictions between their evidence
and the
other evidence in the case, and indeed that which was put by them to
the witnesses or was not put, all four accused became
more and more
evasive, conjuring up answers which were contradictory in themselves
or entirely implausible. For example, accused
one happily stated that
had he known of Tatsi’s involvement he would have advised Tatsi
to tell the truth. When challenged
on the basis that this was
anomalous because Thandazaile, Duva and Rigo had shortly after the
incident told him of their involvement
and that he had not advised
them to tell the truth, his answer was that that was a different
situation as they could distinguish
between right and wrong. Why
there would be any difference whatsoever between them and Tatsi, a
clearly intelligent young man,
was not explained. When pressed for an
explanation, he gave no less than four evasive answers for not having
advised them to tell
the truth. When asked as to why many aspects he
testified to were not put to the state witnesses, his answers once
again prevaricated
from statements like “
I did not take it
to heart as I knew it was not true
” to “
I was
shocked
” and to “
I forgot to challenge it
”
all in the same breath and relating to the same question.
[175]
As to the demeanour of accused one, he continually projected the
image of a victim. However, as the cross examination
progressed
further, he became more and more uneasy and shifty eyed.
[176]
Accused two mentioned in evidence, for the first time, that he was of
the belief that Tatsi had been “
influenced
”. He
however was unable to state by whom this influence had been exerted.
He was also very careful not to say how and in
what respect such
influence could have been exerted. The reason he gave as to why he
believed this was that he apparently knew
Tatsi very well and that
Tatsi could not have made up his own mind to change his plea from not
guilty to guilty as he did during
the trial. Furthermore, he
testified that Tatsi had been involved in the trial throughout and
had had access to the police docket.
It was because of this that
Tatsi had managed to fabricate this long, involved and detailed
exposition of what had happened. However,
neither he nor any of the
other accused could explain how it was that Tatsi could manage,
without a note in front of him, to give
extensive detail relating to
what happened which, coincidentally, corroborated the state’s
evidence and the confessions and
pointings out of the other accused.
In this regard accused two, when pressed, despite initially accepting
that Tatsi must have
been involved, stated that Tatsi had been
influenced, had been told what to say in court and had been shown how
to give evidence.
This simply does not gel and is entirely against
the probabilities.
[177]
Furthermore, the accused could not explain why Tatsi had implicated
all four of them. There had been no bad blood
or quarrels between
them, and it appeared from all the evidence that there was no reason
for Tatsi to falsely implicated any of
the accused. Taking this
further, the accused could not explain why, if Tatsi had it in for
them he would not have made sure that
all four of them were
implicated fully in all these occurrences. In this regard, they could
not explain why Tatsi did not allege
that accused one had shot anyone
or that accused five had done so. They could not explain as to why he
testified that accused five
had played a relatively limited role
compared to the other accused in that he had driven back to the
compound after the Nyanga
incident. On the thesis that Tatsi was
falsely implicating them because of a grudge or out of revenge for
some reason, why would
he not have implicated each of the four
accused to the hilt? None of the accused could explain these
questions and, as I have indicated,
became more and more evasive when
challenged with them.
[178]
Accused two, three and five likewise could not explain why important
aspects of their testimony, apart from their
alibi defences, were not
put to the state witnesses, more especially Tatsi and Poswa. For
example, in evidence accused two and
other accused talked of more
than one trip to Cape Town and a separation of three of the accused
from the other group. None of
this was put to the state witnesses.
There is no doubt that this was a further recent fabrication to
explain how it came about
that accused one, two and three had known
nothing about the planning and other activities relating thereto
which occurred in Cape
Town. Accused two indeed tried to go further
by suggesting that he had documentary evidence in the form of a bus
ticket to prove
this which, as it turned out, was entirely
irrelevant. Again, none of this was put to the state witnesses. I
pause in this regard
to say again that I have throughout the trial
given leeway to the accused regarding cross-examination etc. However,
the record
will reveal that they have been fully aware of their
rights and are fully capable of cross-examining. Throughout the trial
they
have been fully alive to the consequences of failing to put
important material evidence to state witnesses and to challenge them

in regard thereto. There can thus be no real argument that as
laypersons they misunderstood, and that the court should disregard

this.
[180]
Accused three flip-flopped between stating clearly in evidence that
he did not dispute that Tatsi himself had
been involved in these
incidents to saying that he did not believe Tastsi was involved, when
it suited him. He, like the others,
contradicted his own evidence and
the evidence of the other accused. When pressed on several aspects
which I have already dealt
with he resorted to stating that he had no
comment. He even went to the extent of disputing that the person that
Tatsi had pointed
out on the video footage as being Tatsi himself,
was indeed Tatsi. He likewise could not explain why Tatsi had simply
chosen to
implicate him out of the large group of young men living at
the compound. After saying that Tatsi was not capable of committing

these offences, he maintained that Thandazaile, Duva and Rigo were
likewise not so capable. This is in stark contradiction to all
the
evidence that Thandazaile, Rigo and Duva had admitted their own
involvement to other accused. It is also in stark contradiction
to
the video footage of the Cala incident where all the accused and
Tatsi accepted that Duva and Rigo appeared robbing the complainant.
[181]
Accused five did not fare any better in evidence. He tried to make
out that he only became aware that he could
call a witness the week
before he testified. He could not explain why this witness, Monco,
had remained in court throughout the
trial and had thus been able to
listen to all the evidence. This, despite the fact that at an early
stage, it was explained to
him that witnesses were to remain out of
court. Again, as with the other accused vital and extensive parts of
his testimony were
not put to the state witnesses. He either
attempted to evade the question when he was asked why he had not put
these aspects or
made statements like “
I concentrated on
things he implicated me on
”. This is entirely implausible.
Accused five was fully alive to every single nuance in the case
throughout and, had the alibi
defence been true, he would certainly
have put it to the relevant witnesses. Also, it was surprisingly not
put to accused three’s
witness, Gemi, who maintained that he
had been sitting outside the compound most of the night. Accused five
appeared to be more
concerned about aspects which were not relevant
to the case such as the Mancoba’s underwear. Indeed, as the
cross examination
wore on, it became almost laughable as to accused
five’s attempted explanation’s as to why he had not put
extensive
aspects of his evidence to the relevant witnesses. There is
little doubt that his alibi and various other aspects were recent
fabrications.
When pressed as to why Tatsi implicated him out of all
the people at the compound, he, for the first time, stated that he
thought
Tatsi must have had a grudge against him and that is why he
gave accused five’s name. He then added that Tatsi simply
wanted
to fill in names of the friends of Thandazaile, whose names
he, Tatsi, did not know. He was unable to explain the obvious
contradiction
or anomaly that, had Tatsi had a grudge against him and
implicated him because of this, Tatsi did not involve him more in the
events
of that night but instead said that he had left after the
Nyanga incident. His attempt to explain why he had not put his alibi
to the state witnesses by saying that had he done so, it could have
been argued that Mr. Monco had heard this and tailored his evidence

accordingly, was simply laughable because it was accused five who
should have ensured that Mr. Monco remained outside court and
was
clearly an afterthought.
[182]
During his evidence accused five mentioned the names of several
people who lived in the same communal room at
the compound as he did.
Included in this list was Mr. Monco. During cross-examination of his
witness, the very same Monco, it was
established that certain of
these witnesses were available to testify. In particular, one of
those witnesses was alleged by Monco
to have been assaulted in the
garage as Monco himself maintained he had been. During
cross-examination, Mrs. Mvandaba effectively
invited accused five to
consider calling these further witnesses, particularly as they were
likely to be more independent than
Monco, as I shall deal with later.
Despite this invitation, accused five simply closed his case without
calling these witnesses.
This is another mark against his testimony
as it seems clear that he did not believe that these witnesses would
assist him.
[183]
As regards Mr. Monco, he had simple evidence to relate. All he had to
do was confirm the alibi lately created
by accused five to the effect
that accused five had indeed been sleeping in the bed with him all
night. At first blush, he, in
the same manner as the accused and the
witness, Gemi, portrayed the demeanour of a sincere witness. However,
once again under cross
examination, the cracks appeared. He became
more and more evasive when placed in a difficult position and
attempted repeatedly
to anticipate questions by jumping ahead and
answering questions that had not been asked. His evidence was
contradictory in many
respects, for example when I asked him whether
he had told his son, accused one, about the alleged severe assault
upon him during
the course of the Friday evening which had caused him
to confess to murders that he had not committed, he said he had not
and confirmed
that he had raised it for the first time during his
testimony. At a later stage under cross-examination, he maintained
that once
he had returned from the garage after the assaults, he had
indeed related all this to the assembled host, including all the
accused.
When the contradiction was pointed out to him, he began to
prevaricate once again by trying to make out that certain of the
inmates
had been removed from the cell and that perhaps the accused
had also been removed. It was abundantly clear that this was all
false.
Had he indeed been so assaulted on the Friday night he would
have, surely, related this to the other accused and in particular to

his son at the earliest possible opportunity. Not only that, but he
maintained that he had injuries on his body and a visible injury
to
his face. Why would he not ensure that his own son saw what had
happened to him? The reason why this is of importance is that
it was
only at the very tail end of the trial that this evidence of an
assault upon this witness was raised. Had there been an
element of
truth to it, it would, surely, have been raised with some force
during the trial within a trial. It would have been
vitally important
evidence to support all the accused involved in the trial within a
trial (including Tatsi) as he maintained that
he had been assaulted
in the very same manner. There can be no doubt that had that
happened, all the accused would have been apprised
of this important
information at an early stage, particularly through Mrs. Mancoba who
was apparently supporting the accused in
their endeavour to be
acquitted on these charges. His attempts to distance himself from
having related this information to his
own son indeed became
laughable. At one stage under questioning by the court, he was asked
whether he had visited his son in jail
and he confirmed that he had
done so towards the end of 2018. He was asked whether he had
explained to his son what had happened
to him in the garage. He said
he could not because warders were standing near him. When asked why
this would have been a problem,
he said that he did not want to be
seen to be influencing his son. He thereafter proceeded to give two
more reasons when pressed
by Ms. Mvandaba on this point, which
contradicted his earlier reasons.
[184]
Then there is the curious aspect that he was assaulted so severely to
the point of confessing to murders he did
not commit but was not
charged and prosecuted. This is simply bizarre. His simple
explanation was that after he had confessed,
the police interrogating
him had conferred and had decided that he should be released. If this
were indeed so, those police officers
should not only be prosecuted
for assault, but also for dereliction of duty. He continued to
embellish his evidence in this regard
by stating that he had been
assaulted by an Indian police officer of shortish stature. The only
such person involved was Brig.
Govendor. As I have already dealt with
during the trial within a trial, Brig. Govendor was the last person
who could or would have
assaulted anyone.
[185]
As I have indicated, his evidence was contradictory, and he became
more and more evasive. Indeed, as the cross
examination progressed,
and as he was pressed further, he became aggressive in his evasion.
He was an appalling witness and there
is little doubt that his lack
of truthfulness directly impacts upon the veracity of his assertion
that accused five remained with
him all night when the police were
killed. Not only was there no real reason for him to have recalled
these facts after so many
years, but, indeed, in view of his
mendacity I have little doubt that he was lying about that as well.
[186]
There is, perhaps, an explanation for this mendacity. Firstly, as I
have indicated, Monco is the father of accused
one and therefore has
a powerful motive to assist him and, indirectly, the other accused,
insofar as he is able to do. This, in
my view, is a powerful reason
for placing false testimony before the court. Secondly, he sat in
court listening to the evidence
on many occasions. Whilst it may be
so that I did not directly caution accused five in this regard, I was
unaware until accused
five opened his case that he wished to call
Monco as a witness. At the end of the state case, I detailed the
accuseds’ rights
including the right to call witnesses. I also
encouraged them to provide a list of witnesses as a soon as possible
so that those
witnesses could be brought to court, if necessary on
subpoena. However, they chose not to and to only inform the court as
to whether
they were calling witnesses when they opened their cases.
It must also be borne in mind that the accused have been through a
full
trial within a trial wherein these rights were detailed. At that
stage, they did call witnesses and those witnesses were kept out
of
court whilst the other evidence was being led. The accused were
therefore fully aware of the necessity to ensure that such witnesses

remained outside. It is rather strange in these circumstances that
accused five did not ensure that the witness he intended to
call was
told to remain outside court. Once again, Monco was clearly able to
tailor his evidence in accordance with the evidence
led up to that
point in the case.
[187]
I was also not impressed by the evidence of accused three’s
witness, Gemi. He prevaricated and became aggressive
when pressed
under cross examination. The lie to his evidence was put when he
denied any knowledge of the meeting as testified
to by Poswa and
Tatsi. Under cross examination, when this was put to him, he stated
that it was the first time he had heard about
it. When it was put to
him that it may well have happened in his absence, he again attempted
to defend the accused by saying that
he was one of the people in the
compound who would
[188]
have been fully aware of each and every happening, particularly if it
had been of importance. He was simply not
prepared to concede the
obvious, that he may not have been aware of it. I gained the distinct
impression that he was indeed aware
of it but wished to protect the
accused at any cost. He exhibited aggression in evading difficult
questions. He also testified
as to assaults upon his person at the
police station which was entirely new evidence. This was not only
irrelevant to the merits
of the case but did not accord with the
evidence of the accused relating to assaults. There were also several
contradictions between
his evidence and that of the accused. I was
thoroughly unimpressed with Gemi and his evidence as with the accused
and Monco’s
evidence, clearly falls to be rejected.
[189]
All the accused argued that there arrest and detention was unlawful,
based on various technicalities in the documents.
This theme was
raised early in the trial by accused five and persisted in doggedly
throughout. As far as accused one, accused two
and accused three are
concerned, it was only raised an argument for the first time. So even
if it had any relevance, this point
could not have been dealt with in
evidence. However, whatever the position may be with regard to the
lawfulness of such arrests
and detention this is irrelevant to the
merits of this case and I will not waste anymore time dealing with
it. Suffice it to say
that, at the very least, once their detention
was ordered by the magistrate on first appearance, it was lawful from
there on. Accused
five also once again in argument revisited his
age-old argument about whether he appeared in court on 27 February
2018 or not.
During the course of the trial, I have over and over
again explained to him the irrelevance thereof but much of his
argument was
devoted to this maintaining that all the exhibits
pertaining thereto are, in his words, “
unlawful
”.
Once again, because of the irrelevance hereof I will not waste any
further time with this argument.
[190]
Furthermore, all the accused again extensively re-argued the
admissibility of the confessions and their pointings
out as dealt
with in the trial within a trial and ruled admissible by this court.
Although such ruling was provisional, nothing
new and certainly no
new evidence has been raised to dislodge my conclusion as already
dealt with in my reasons for admitting the
confessions and pointings
out.
[191]
Another argument raised by certain of the accused was as to the fact
that the ballistics evidence did not directly
establish that the
firearm taken from Constable Sulundwane in Cala was used at the scene
at Nyanga. Tatsi’s evidence in this
regard was to the effect
that both of these firearms had been used by Duva and Rigo in
shooting the two policemen when they exited
their vehicle at Nyanga
High School. This, they argued, put the lie to Tatsi’s
evidence. In my view this is not so. The probabilities
are the Tatsi
is correct in this regard as the evidence clearly shows that these
two firearms were indeed taken from their owners
sometime prior to
the occurrences on 20 – 21 February 2018 and Tatsi was adamant
that they were taken to Nyanga and used
there. Because a cartridge
may link a suspect or a firearm to a crime does not make that
evidence suspect because another firearm
is not ballistically linked
to the crime. It depends entirely on the circumstances. Clearly this
was a rushed scene and many things
happened during the course of
which two policemen were murdered. Precisely how many shots were
fired, where they were fired and
by whom, can never be absolutely
clear. It may well be that one of the cartridges was overlooked by
the forensics officer or that
it was picked up by one or other of the
perpetrators or even by a passerby. This can in no way affect the
veracity of Tatsi’s
evidence.
[192]
Having examined the evidence closely, it is necessary to stand back
and look at it as a whole. There is little
doubt that when one looks
at the mosaic of evidence in this case, the evidence by the state
implicating the accused is overwhelming.
In the face of such
evidence, the accuseds’ denials cannot be sustained. I
accordingly find that the state has proved beyond
a reasonable doubt
that accused one, accused two, accused three and accused five were
indeed involved in all the events relating
to the crimes with which
they have been charged, as has been described in detail by Tatsi.
[193]
Having reached this conclusion, a further question arises regarding
the involvement of accused 5 in all these
events. It will be recalled
that, both on his confession and on the evidence of Tatsi, after the
killing of the policemen near
Nyanga school and after all the
equipment had been offloaded from his vehicle and onto the police
van, he drove back to the Mancoba
compound and was not physically
involved in the attack on the police station and the further events
of that night. The state has
argued that he should nonetheless be
convicted based on common purpose.
[194]
In our law, common purpose may be founded on two bases, namely, where
there is a prior agreement and, in the absence
thereof, where there
has been an active association with the events relating to the crimes
charged. On either basis, the conduct
imputed to the accused is the
conduct of the participants in the execution of their joint
venture
[13]
. The question
which arises in this regard relating to accused 5, is as to whether
he was part of the prior conspiracy, or agreement,
and whether that
agreement extended to all the activities and resultant crimes which
occurred after the killings of the two policemen
near Nyanga school.
There is little doubt on the evidence that accused 5 was fully
involved on either basis in the criminal offences
which arose out of
the events leading up to and including the death of these policeman.
However, is accused 5 liable based on common
purpose for the crimes
committed thereafter such as the robberies and murders executed
whilst the group was at the police station,
and thereafter?
[195]
After full consideration, I have concluded that the state has
established beyond a reasonable doubt that accused
5 is guilty of
these subsequent criminal offences. On the evidence of Tatsi, there
can be little doubt that accused 5 was fully
aware of the plans to
attack and rob the police at the police station of their firearms,
and to thereafter break and enter the
banks to steal money. Whilst it
is so that he was not always present with the main group when various
arrangements were made, such
as when they were in Cape Town, Tatsi’s
evidence makes it clear that he was fully aware of the plans and
participated therein.
This is evident from the evidence of his
telephonic discussions with Thandazaile when Thandazaile was in Cape
Town as overheard
by Tatsi. Accused 5 also contributed by providing a
firearm and a considerable amount of ammunition for the enterprise.
Apart from
this, accused 5 also participated in the plan by acting as
a scout by driving through and around Ngcobo to ascertain the times
and movements of the police patrols. This was all in furtherance of
the conspiracy or plan which had been hatched by Thandazaile
to
commit the robberies etc. to which I have referred. Added to all of
this, he was present when the equipment to be used for breaking
into
the safes at the banks was loaded on or off his vehicle on more than
one occasion, including the final occasion when these
events
occurred. He was also involved in the earlier aborted mission which,
as I understand Tatsi’s evidence, was aborted
on the suggestion
of accused 5 because the circumstances were not conducive. Then of
course there is the fact of his full participation
in the events up
to and until he returned to the Mancoba compound. At that stage he
had fully participated by misleading the police
into chasing him
directly into the ambush. He was then present when, after the
policeman had been killed, the same equipment was
offloaded from his
vehicle and into the police van. All of this leads to the ineluctable
conclusion that accused 5 was a full participant
in the conspiracy
and plans to commit these offences and played a major part in their
execution.
[196]
Added to all this is the fact that his brother, Duva, had been fully
involved in the planning as well. This is
a further indication that
he knew what was going on. And then of course, there is the fact that
accused 5 was untruthful in denying
his involvement. This alone
fortifies the conclusion beyond doubt that he had a guilty mind in
this regard.
[197]
On all the direct evidence in this regard, that is the confession of
accused 5 and the evidence of Tatsi, accused
5 went back to the
compound before the events at the police station and later had
transpired. However, in my view, for him to escape
liability as
against this background, he would have had to actively withdrawn from
the joint enterprise as at that stage which,
it is clear, he did not
do. In the Zimbabwean case of
S
v Beahan
[14]
,
which was confirmed to be part of our law by Goosen J (as he then
was) in
S
v Wana & Oths
[15]
,
the following was said:
“
I respectfully
associate myself with what I perceive to be a shared approach,
namely, that it is the actual role of the conspirator
which should
determine the kind of withdrawal necessary to effectively terminate
his liability for the commission of the substantive
crime. I would
venture to state the rule this way: Where a person has merely
conspired with others to commit a crime but has not
commenced an
overt act towards the successful completion of that crime, a
withdrawal is effective upon timely and unequivocal notification
to
the co-conspirators of the decision to abandon the common unlawful
purpose. Where, however, there has been participation in
a more
substantial manner something further than communication to the
co-conspirators of the intention to disassociate is necessary.
A
reasonable effort to nullify or frustrate the effect of his
contribution is required.”
[198]
Goosen J, in dealing with this decision, stated that it proceeds from
the logical premise that the greater the
involvement and the more
advanced the execution of the criminal enterprise, the more clearly
an accused person who relies on disassociation
must establish a basis
for a finding of disassociation. This is not of course, as emphasized
by the learned judge, to say that
the accused attracts an onus. He
added that it is necessary to establish that the accused had a clear
and unambiguous intention
to withdraw from the criminal enterprise.
[199]
There is absolutely no evidence whatsoever to indicate that accused
5, when he went back to the compound, withdrew
from the criminal
enterprise. He did not notify anyone, let alone the police, of what
was about to occur in an attempt to avoid
it. On the contrary, it
seems he went back to the compound and allowed the events to play out
as planned. His defence in this court
was a complete denial of any
participation. There is thus no evidence that he withdrew from the
conspiracy at all. In the circumstances,
he is clearly guilty of all
the offences with which he has been charged, save for count 3. A
conviction on count 3, being conspiracy
to rob and kill the police of
the Ngcobo police station, would amount to duplication of convictions
because the accused are clearly
guilty of such robbery, and murder.
[200]
As regards accused 1, 2 and 3, there is no doubt that their
confessions, the evidence of Tatsi and all the other
circumstantial
evidence establishes their guilty participation in all the offences
with which they have been charged, save for
count 3 for the reasons
given.
[201]
I accordingly find as follows:
1.
Accused 2 and 3 are found guilty on counts 1, 2, 4, 5, 6, 7,
8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22, as
charged.
2.
Accused 1 and 5 are found guilty on counts 4, 5, 6, 7, 8, 9,
10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22, as charged.
3.
All the accused are acquitted on count 3.
R
E GRIFFITHS
JUDGE
OF THE HIGH COURT
COUNSEL
FOR THE STATE       :
Ms Mvandaba
INSTRUCTED
BY

:
Director of Public Prosecutions
COUNSEL
FOR THE DEFENCE :
ALL ACCUSED IN PERSON
DELIVERED
ON

:           17 MAY
2024
[1]
1987
(2) SA 272
(A)
[2]
1990
(1) SACR 582 (A)
[3]
2015
(2) SACR 501
SCA
[4]
1957
(4) SA 727 (A)
[5]
1999
(2) SACR 558
(SCA) at 738a - b
[6]
S v Van
der Meyden
1999
(2) SA 79
(W) at 82C-D.
[7]
2003
(1) SACR 97
(SCA) at para  57
[8]
LAC
(1980 – 1984)
[9]
1948
(4) SA 399
(A) at page 405 – 406)
[10]
R
v Kristusamy
1945 AD 549
at p. 556.
[11]
Mcebisi
Magadla v The State
case
No.: A41/08 (Tkei)
[12]
S
v Zwayi
1997(2) SACR 772 (Ck) at 778
[13]
S v
Mgedezi
1989
(1) SA 687
(A);
S
v Mzwempi
2011 (2) SACR 237 (ECM)
[14]
1992
(1) SACR 307 (ZS)
[15]
2015
(1) SACR 374
(ECP)