SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy


IN THE HIGH COURT OF SOUTH AFRICA
(EAST ERN CAPE DIV ISION, EAST LONDON CIRCUIT COURT )

Case No.: CC 64 A/2024
Reportable YES/ NO

In the matter of:

THE STATE

versus

DYABANA ODWA ACCUSED 1

NGANGELIZWE LUTHANDO ACCUSED 2

MAGOBONGO LUNDI ACCUSED 3

QHAYISO SISEKO ACCUSED 4
__________________ __________________________________________ ____

JUDGMENT
________________________________________________________________

Cengani -Mbakaza AJ

Introduction

[1] On 20 February 2024, a farm attack incident (the first crime scene ) which
was perpetrated by six unknown armed male assailants prompt ed the police to
obtain statements from 35 witnesses and collate 34 documents (exhibits). This
incident was followed by a second episode involving vehicle collision at N2 Road
Beacon Bay in East London (the collision scene) . The Toyota Landcruiser which is
counted amongst the properties that were stolen at the farm escaped the first crime
scene and collided with a mini -bus taxi (the Toyota quantum) carrying fifteen
passengers as well as a VW Polo (the Polo) carrying one passenger . As a
consequence of the se events, the Director of Public Prosecutions for the Eastern
Cape Division Makhanda , instituted prosecution against the four accuse d on the
following charges . Some of these charges relate to accused 1 only:

Count 1 - Pointing of a firearm in contravention of section 120(6), read with
sections 1, 121 and Schedule 4 of the Firearms Control Act 60 of 2000.
In that on or about 20 February 2024 and at or near Lorain Farm, Bluewater, in the
Buffalo City Magisterial District , the accused, in the execution or furtherance of a
common purpose, unlawfully and internationally pointed firearms at Heyden Aldred
Luck, an adult male person, without good reason to do so.

Count 2 - Kidnapping.
In that on the date and at the place mentio ned in count 1, the accused, acting in the
execution or furtherance of a common purpose, unlawfully and intentionally deprived
the said Heyden Aldred Luck of his freedom of movement by tying his hands behind
his back with masking tape, forcing him onto the back of his Land Cruiser and
holding him against his will in his house.

Count 3 – Robbery with aggravating circumstances as defined in section
1(1)(b) of the Criminal Procedure Act number 51 of 1977.
In that on the date and at the place mentioned in count 1, the accused, acting in the
execution or furtherance of a common purpose , unlawfully, intentionally and through
the application of force and violence to the said Heyden Aldred Luck, took from him
the items listed in annexure “A”1 hereto, the property, or in the lawful possession of
the said Heyden Aldred Luck. Aggravating circumstances as defined in section
1(1)(b) of the Criminal Procedure Act, No. 51 of 1977 were present in that the
accused wielded firearms and inflicted grievous bodily harm on the sa id Heyden
Aldred Luck.

Count 4 – Robbery with aggravating circumstances as defined in section
1(1)(b) of the Criminal Procedure Act No. 51 of 1977.
In that on the date and at the place mentioned in count 1, the accused, acting in the
execution or furtherance of common purpose, unlawfully, intentionally and through
the application of force and violence to Zameka Gelem, took from her an Oddo cell
phone, the property, or in the lawful possession, of the said Zameka Gelem.
Aggravating circumstances as defined in section 1(1)(b) of the Criminal Procedure
Act 51 of 1977 were present, in that the accused wielded firearms and/or threatened
to inflict grievous bodily harm on the said Zameka Gelem.

Count 5 – Attempted murder.
In that on the date and at the pl ace mentioned in count 1, the accused, acting in the
execution or furtherance of a common purpose, unlawfully and intentionally
attempted to kill Heyden Aldred Luck by forcing him to lie on his back in a bath, with
his hands and legs tied, tying a towel ar ound his face and dousing it with water,
putting the plug in the bath and running hot water into it, and leaving him tied up and

1 “ANNEXURE “A””
Item Value
Toyota Land Cruiser motor vehicle with
registration number K[...] R 1, 023, 509.00
Toyota Hilux motor vehicle with
registration number K[...]2 R 673,988.00
Cash R 24,994.00
A large safe R 12,850.00
A small safe R 4,000.00
2 wrist watches R 45,594.00
Wedding rings R 215,150.00
Bangles and other jewellery R 6,000.00
Two .308 calibre Sako rifles;
Two .243 calibre Sako rifles; R 180,000.00
A shot gun and a pellet gun R 20,000 .00
Cartons and packets of cigarettes R 2,000.00
TOTAL VALUE R 2, 283, 085.00


blindfolded in the bath with the tap running when they left the house with reckless
disregard to him drowning.

Counts 6 to 9 an d Schedule 1 – Kidnapping.
In that on the date and at the place mentioned in count 1, the accused, acting in the
furtherance of a common purpose, unlawfully and intentionally deprived the persons
listed in the second column of Schedule 1 hereto of their fr eedom of movement, by
forcing them into a shop building and locking them up inside it against their will.

SCHEDULE 1
Count 6 Bonga Yekani, a 38 -year-old male person
Count 7 Maboy Veni, a 58 -year-old male person
Count 8 Zameka Gelem, a 42-year-old female person
Count 9 Andile Khangelana, a 20 -year-old male person

Counts 10 to 22 and Schedule 2 (Accused 1 only) – Attempted Murder.
In that on the date mentioned in count 1 and at or near the Bonza Bay off ramp along
the N2, East London, in the Buffalo City Magisterial District, accused 1 unlawfully
and intentionally attempted to kill the persons listed in the second column in
Schedule 2 hereto by deliberately driving a vehicle at high speed over a stop sign
and through a busy intersection, in an attempt to avoid an arrest after having
committed the offences detailed in counts 1 to 9, causing a collision with two other
vehicles, a VW Po lo and a Toyota Quantum minibus, as a result of which the
occupants thereof, listed in the second column of Schedule 2 hereto, sustained
various injuries, and accused 1, notwithstanding his foresight of the possibility of his
actions causing the death s of the said occupants, acted with reckless disregard for
this consequence.

SCHEDULE 2
Count 10 Luvo Zweni, a 34 -year-old male person (Quantum)
Count 11 Bulelwa Vionah Gola, a 47 -year-old female person (Quantum)
Count 12 Nomachina Jacob, a 60 -year-old femal e person (Quantum)
Count 13 Winnie Mbovu, a 66 -year-old female person (Quantum)
Count 14 Wele Smile, a 64 -year-old male person (Quantum)
Count 15 Thandiswe Matross, a 40 -year-old female person (Quantum)
Count 16 Ntombozuko Mboso, a 51-year-old female person (Quantum)
Count 17 Fundiswa Mnokoto, a 44 -year-old female person (Quantum)
Count 18 Vuyiswa Gombe, a 65 -year-old female person (Quantum)
Count 19 Bulelwa Petse, a 45 -year-old female person (Quantum)
Count 20 Lungisile Mesetywe, a 47 -year-old male person (Quantum)
Count 21 Wiseman Komisa, a 51 -year-old male person (Quantum)
Count 22 Preston Premlala, a 21 -year-old male person (VW Polo)

Count 23 (Accused 1 only) – Murder (read with the provisions of section 258 of
the Criminal Procedure Act 51 of 1977).
In that on the date and at the place, and acting in the same manner described in
counts 10 to 22, accused 1 unlawfully and intentionally killed Nongetheni Foki, an
adult female person, by colliding with the Toyota Qu antum vehicle in which the said
Nongetheni Foki was a passenger thereby causing her serious injuries as a result of
which she died at Frere Hospital on 27 May 2024, and accused 1, notwithstanding
his foresight of the possibility of his actions causing the death of the said Nongetheni
Foki, acted with reckless disregard for this consequence.

Count 24 (Accused 1 only) – Reckless or negligent driving in contravention of
section 63(1), read with sections 89(1) and 89(5)(a) or (b) of the National Road
Traffic Ac t No. 93 of 1996.
In that on the date and at the place mentioned in counts 10 to 23, accused 1
unlawfully drove a vehicle, to wit a Toyota Land Cruiser with registration number
K[...], in a reckless or negligent manner by deliberately driving at a high speed
through a stop sign and through a busy intersection, thereby colliding with two other
vehicles.

Counts 25 to 33 – Unlawful possession of a firearm in contravention of section
3(1)(a), read with sections 1, 120(1), 121 and Schedule 4, of the Firearms
Control Act 60 of 2000.
In that on the date and at the place mentioned in count 1, the accused, acting in the
execution or furtherance of a common purpose, unlawfully possessed the firearms
listed in column 2 of Schedule 3 thereto, without being t he holder of a licence, permit
or authorisation to possess such firearms.

SCHEDULE 3
Count 25 12-gauge calibre double barrel shotgun with serial number 3[...]
Count 26 .22 long calibre pump action rifle with serial number 1 [...]
Count 27 .308 calibre Sako model L579 rifle with serial number 4 [...]
Count 28 .308 calibre Sako model VL63 rifle with serial number 3 [...]
Count 29 .243 calibre Sako model L579 rifle with serial number 2 [...]
Count 30 .243 calibre Sako model L 579 rifle with serial number 1[...]
Count 31 A handgun of unknown make and model
Count 32 A handgun of unknown make and model
Count 33 A handgun of unknown make and model

Count 34 – Unlawful possession of ammunition in contravention of section 90,
read with sections 120(1), 121 and Schedule 4 of the Firearms Control Act, 60
of 2000.
In that on the date and at the place mentioned in count 1, the accused, acting in the
execution or furtherance of a common purpose, unlawfully possessed and unknown
quantity of ammunition, of unknown calibre and make, without having a valid lic ence,
permit or authorisation to possess firearms capable of discharging such ammunition.

[2] All th e accused pleaded not guilty in respect of all charges . Through their
legal representatives, Mr Erasmus for accused 1 and Mr Mgudlwa for accused 2,3
and 4 reserved the basis of their defences.

The facts :

(a) The first crime scene.

[3] Hayden Aldred Luck (Luck) is a proprietary of the farm that operates as a
mixed agricultural enterprise cultivating vegetables and raising cattle. The farm
employs 70 permanent staff members and is supplemented by about 200 temporary
workers. Among Luck’s employees are Bongani Yekani (Yekani), Maboy Veni(Veni),
Zameka Gelem (Gelem) and Andile Khangelana (Khangelana). On th e day in
question, Luck and the specified employees were on duty as usual. Around 14:00
which is their lunch time, three men were seen taking drinks next to the shop which
is also situated in the farm. These three men politely approached Luck who was
about to drive his Toyota Land cruiser out of the premises . Luck was in company of
Yekani . The y pretended as if they wanted to buy dogs. Together with Yekani and the
three assailants, Luck drove towards the dogs ’ kennels .

[4] A peaceful conversation between Luck and the assailants carried on without
any suspicions from either Luck or Yekani. Whilst still in the driver’s seat, the three
men pointed Luck with weapons which he believed were ‘firearms ’, one on the side
of the driver’s seat and two on the side of the passenger’s seat. Yekani who was at
the back of the Toyota Landcruiser had already been instructed to lie down. He was
tied with a masking t ape. One of the assailants took control of the Toyota
Landcruiser and drove it next to the main house,

[5] When Luck was instructed to get inside his house , the ‘firearms ’ were stil l
pointed in his p erson . He was tied with a masking tape so as to rest rain him from
moving. The assailants demanded safe keys. It is gleaned from Gelem’s evidence
that Luck was not in control of the safe keys and monies , his wife Jacquie Luck
(Mama Jack ) was. As a result he knew nothing about the safe keys that were
demanded from him. This then outraged the assailants and they started to beat him
up. The other three assailants simultaneously accosted the other employees to wit
Yekani, Veni , Gelem and Khangelani. From there they came to where Luck and
other three assailants were and started to ransack the house. One of the assailants
kept an eye on the employees that were locked in another house and instructed
them not to move.

[6] Because Luck could not tolerate the excruciating pains from the torture, he
asked them to call Gelem to give a clue of where the safe keys were. Gelem used
Luck’s mobile phone which was already robbed from his possession. She phoned
Mama Jack whilst under the guard of the robbers. At the time Gelem was phoning
Mama Jack, one of the robbers had pointed a ‘firearm’ on her head. Gelem politely
asked for the keys from Mama Jack and pretended all was well at home. Mama Jack
confirmed that the safe keys were in her possession. This also angered the
assailants, they continued to torture Luck . One of the assailants took Gelem back to
where the other employees were and locked the door and the buglar.

[7] Luck explain ed the role played by some of the assailants and testified that
one of them whilst beating him up opened a hot water inside the bathtub and
instructed him to lie inside . He did as instructed, the hot water started pouring at him
whilst he was in the lying position.

[8] He recalled them placing a cloth over his mouth while he was submerged in
scalding water in the bathtub. The burning of the hot water could not be tolerated, he
swiftly removed the bath cap and some water was running down the drain.
As he attempted to li ft himself up to drain the water, one of the attackers pulled a
knife out and pressed it painfully against his throat. The assailant threatened , “I am
going to slit this whiteman’s throat just like slitting a pig’s throat in water. ” When he
dared the attac ker to proceed, the knife was released and his face was covered with
a cloth.

[9] As a result of the torture, Luck sustained multiple injuries , including cuts on
his head from being struck with a firearm . There was widespread bruising on his
chest, ribs and other areas, He sustained facial swelling and discoloration. There
were blisters on his buttocks emanating from being submerged in scalding water.

[10] Luck informed the assailants to ask the tools from one of his employees so
as to break the sa fes and take whatever they wanted to take . Khangelana was called
to look for the electric grinder and the crowbar. When he lifted the garage door, one
of the assailants hit him with a firearm. He could not tolerate the pain and the shock
that he found hims elf in and asked them to cal l Veni to check the tools instead. Veni
was instructed to look for the tools which he found. The assailants broke the door
and the removed the safes . Veni was instructed to assist in loading the items
including the safes which had firearms and money inside the Toyota Landcruiser .
Since they were two motor vehicles in the yard, one of the assailants ordered that
both vehicles be driven out of the premises. This was adhered to. The six assailants
left the scene in possession of all the listed properties. They drove towards East
London direction at extremely high speed.

[11] The news regarding the robbery at Luck’s place was circulated via the
WhatsApp group of the community members. Those who could follow the lead did.
Amongst those who were chasing Luck’s car were Karl Human (Human) w ho was in
company of Johannes Jansen (Jansen ) as well as Christi Roestort (Roestort).
Human and his co -driver witnessed how the collision betwe en Toyota Landcruiser,
the polo and the Toyota quantum occurred. He observed people flying out of the
Toyota quantum due to the collision . Immediately after the collision , the driver of the
Toyota Landcruiser escaped the collision scene and went to the bus hes. One of the
occupants was left at the collision scene with visible injuries .

[12] After learning about robbery at Luck’s home Roestort drove to settler’s way
towards the direction of the town. Upon arriving at the collision scene , he found one
of the suspects already handcuffed. Roestort assisted the police by searching the
area, including the tunnel for possible evidence such a s hidden firearms and other
relevant clues . As he walked through the tunnel, he spotted an abandoned jacket
approximately 10 metres from the exit. The jacket appeared clean suggesting that it
had been disc arded recently. It feat ured distinctive yellow and white patches on the
sleeves . Concerned that someone might find and conceal it, he took the jacket and
handed over to Sergeant Xhiben i Mgudlwa who registered it in the SAP 13 register.

(b) The collision scene

[13] There were fifteen passengers in the Toyota quantum. 13 of them gave
testimony except for Ms Nongetheni Foki, who passed away at Frere hospital on 27
May 2 024. Although the passengers could not directly witness the incident, their
accounts were similar. They stated that they heard a bang and only to discover that
the Toyota Landcruiser had collided with the back of the Toyota quantum. The
Toyota quantum flipped over resulting in a mix of minor and severe injuries among
the passengers.

[14] Preston Premlal (Premlal) who was a driver of the polo involved in the
collision witnessed the collision and attributed the cause to the reckless and
inconsiderate driving of the Toyota Landcruiser. Specifically, he stated that the
Toyota Landcruiser’s excessive speed led to the colli sion.

[15] It is undisputed that as a result of the collision the Toyota Landcruiser veered
off the tarred road and became lodged in the rails. The vehicle had significant
damage and was subsequently declared a total loss or written off by the insurance
company. M eanwhile, the second bakkie which escaped the first scene during
robbery was abandoned on Hudson Avenue still in good condition.

The evidence linking the accused with the crimes : The state’s case

(a) Arrests, identity and identification parade s.

[16] Based on his observation at the collision scene , Human noticed that the
driver of the Toyota Landcruiser who ran to the bushes was tall and white in
complexion. He had a floppy hat in his head. It is common cause that Accused 2 was
a passenger in the Toyota Landcruiser allegedly driven by accused 1. He was
apprehended at the collision scene.

[17] Mcebisi Sinkwana (Sinkwana), a resident at Nompumelelo village testified
that the tarred road where the collision occurred is not far from his home. On the day
of the incident, he noticed that an accident had occurred due to high unusual volume
of cars on the road. While at home with his girlfriend, accused 1 appeared with
visible injuries. He spontaneously informed them that he was being pursued by the
police for stealing a vehicle in Mooiplas. He bandaged accused 1’s injuries and
borrowed him his jersey, as he complained of feeling cold.

[18] Because he was afr aid, Sinkwana swiftly asked Leizer, his neighbour to call
the police. Leizer took time to return. He then walked accused 1 towards the
direction of Minqi tavern. It was there that police emerged , prompting accused 1 to
flee. Accused 1 was chased and subse quently apprehended by the police including
Const Barney Don, who testified to that effect.

[19] According to Sgt Nkululeko Mtati’s testimony (Sgt Mtati), he found accused 2
lying at the collision scene, covered in dust, bleeding and injured. Upon obtaining
consent to search him, Sgt Mtati discovered four live ammunitions, including a live
ammunition of a rifle in his pocket. In addition, he found a wristwa tch which was later
identified as belonging to Mama Jack. These items were exhibited and depicted in
photographs that formed part of the court’s exhibits.

[20] Following the arrest of accused 1 and 2 as well as the collection of witnesses
‘statements by the police, Luck and his employees indicated that they could
potentially identify the suspects. On 01 March 2024, the investigating officer,
detective warrant officer Kwenene (I/O) instructed detective Constable Nkatazo
(Const Nkathazo) to hold an identification parade (Id parade) . During the Id parade ,
15 males participated including accused 1 and 3. According to Const Nkathazo’s
version Mr Somtsewu , an attorney represented both accused . The results of the Id
parade were as follows: Veni, Yekani and Luck identified accused 1. Khangelana
identified accused 1 and unknown person. Gelem who appeared to be terrified and
nervous identified an unknown person specifically the individual standing as number
15 in the lineup.

[21] In their testimonies Veni, Yekani, Luck and Khangelana explained how they
identified accused 1 at the first crime scene. The witnesses inferred that accused 1
was a mastermind behind the crimes, citing his behaviour of moving around the
premises and issuing instructions to the other perpetrators during the commission of
the crimes. Luck and Khangelana explained that accused 1 had a yellow
complexion, a floppy hat on his head, pants with pockets on the side as well as white
tekkies. While Luck testified that accused 1’s pants were brown with side pockets,
Khangelana could not recall the colour. However, Khangelana did note that the pants
had reflectors below the knee area. Khangelani explained that accused 1 was the
one demanding the electr ic grinder and a crowbar from him. He was the person who
hit him with a ‘firearm ’ when he was trying to open the garage to look for the items.

[22] Although accused 2 did not participate in the Id parade, Luck pointed him in
the dock as one of the assailants. When questioned about his identification, Luck
explained that he recognised accused 2 because he was wearing a white T -shirt
during the incident . He was the one who held a knife on his throat threatening to kill
him, he explained. Accused 2 als o participated in throwing him inside the bathtub.
He further enquired about the whereabouts of the electric grinder and the crowbar.

[23] Sergeant Zukile Soli(Sgt Soli), one of the witnesses testified that although he
did not have the details of how accused 3 was arrested, he took his warning
statement. He submitted a standard police form used to obtain warning statements.
The communication was in I sixhosa, a language understood by accused 3. Before
proceeding writing a statement, accused 3 was informed of his rights, including the
right to legal representation at his own expense or through legal aid, as well as the
right to remain silent. He was als o cautioned that any statement made could be used
against him in court during a subsequent trial. Accused 3 acknowledge d
understanding these rights and proceeded to make a statement, which reads:

‘ I deny the allegation against me that on Tuesday 20 -02-2024 was phoned by
Odwa who is a friend to me and asked me to take him to Mooiplaas together
with his friends who were unknown to me. I met Odwa at Egoli near Buffalo
Flats together with Odwa’s friends who were + - five in total. I proceeded to
Mooiplaas with them. On arrival at Bluewater, I took the left turn and stopped in
the gravel road and all of them alighted from my VW POLO with registration
number N[...] charcoal in colour and hatched back. After that I drove my vehicle
to park at the taxi rank alon g the main road, after a while I noticed a Toyota
Landcruiser Bakkie beige in colour and a white Toyota bakkie from a gravel
road with a high-speed following each other to the direction of East London. I
then followed also to the direction of East London. I am not sure of the drivers
of the two bakkies. That is all I can say about this matter.’

[24] Siyabonga Vuyolwethu Mpusula (Mpusula) testified that accused 3 normally
fetched his aunt’s child from school, but on the day of the incident he failed to do so.
His aunt asked him to take charge. After some time he received a voice note from
the cell -number 0 […], from accused 3 explaining that he was delayed attending a
business at Mooiplaas and would not be able to fetch the child. Mpusula identified
the polo in the exhibited photographs as belonging to accused 3. He later presented
the cell -number to the I/O.

[25] Subsequent to the arrest of accused 4, on 09 February 2025 a second Id
parade was held. Sergeant Mkumatela was in charge of the second Id parade. They
were eight participants in the Id parade including accused 4. Luck, Veni and
Khangelana pointed accused 4 in the Id parade. In contrast, Gelem and Yekani
failed to identify a ccused 4.

[26] Luck testified that accused 4 had a gold tooth at the first crime scene,
however, when he pointed him out in the Id parade he had grown a little beard. Veni
and Khangelana did not provide any identifying features for accused 4. Both test ified
that they primarily focused on the face. Their focus enabled them to identify accused
4 later at the Id parade , so they explained . Although Veni did not provide any
identification marks for accused 4, he described the role he played during the
incide nt. According to Veni, when the house was being ransacked accused 4 was on
the bed, searching for the items to take .

(b) The scientific evidence

[27] Two fingerprint experts whose credentials were undisputed, testified about
their independent analyses of the fingerprints found at the first crime scene. Warrant
officer Lonele Dyakop (W/O Dyakop) visited the first crime scene on the day of the
incident and collected DNA samples from the gear lever and steering wheel of the
bakkie which was recove red at Huydson avenue. He also discovered a cello -type
mask inside the kitchen and a cloth in one of the bedrooms. Allied to those
discoveries he lifted fingerprints f rom a cello -type item which was on top of the chair.
He further took photographs of the k it he used including the sport where the
fingerprints were lifted.

[28] On 25 February 2024, W/O Dyakop received a set of fingerprints from the
I/O. These were obtained at the time of arrest. Upon comparison, the fingerprints
matched those obtained from the I/O, identifying accused 1. On the day of his
testimony, he prepared a court chat by first taking fre sh fingerprints from accused 1
and conducting a second analysis. The fresh prints, along with those from the cello -
type and the I/O ’s submissions confirmed a match, conclusively linking them to
accused 1.

[29] Captain Kelvin Swaartbooi testified about hi s multi -facet role in the case:
official photographer, duty officer, fingerprint expert and crime scene investigator. He
referenced to the photographs he took and stated that he lifted fingerprints and
collected DNA from the firearms found in the Toyota Landcruiser. He used an
automated system to compare fingerprints found in the Toyota Landcruiser with
those obtained from the I/O. The results came out identifying accused 2’s
fingerprints. To further confirm, he took fresh fingerprints and prepared a cou rt chart.
The second comparison also identified accused 2. Although he lifted a lot of
fingerprints from the Toyota Landcruiser, the fingerprints that positively identified
accused 2 were those lifted from the Toyota Landcruiser’s fender.

( c) The evidence of medical response

[30] Mellisa Van Rooyen (Van Rooyen), an intermediate life support paramedic at
ER24, testified that around 15:40 on the day of the incident, she attended to the
collision scene with her colleague who had advanced support skills. She found a lot
of passengers with minor to serious injuries. She attended to the deceased, who lay
on the grass. The deceased was still alive complaining of severe neck pain and
numbness in her limbs. Van Rooyen administered a drip and tra nsported the
deceased with her colleague ’s assistance to Frere hospital.

[31] The deceased sustained no further injuries from the time she was taken to
the collision scene up to a stage when she was admitted in hospital. On 25 February
2024, Van Rooyen visited the deceased in the I ntensive Care Unit for a follow -up.
The patient was still able to talk complaining of being paralysed completely. This was
the last time Van Rooyen saw her.

[32] Dr Sithandiwe Khunyuza (Dr Khunyuza), a medical practitioner c onducted a
post-mortem examination on the deceased’s body on 31 May 2024. Her findings
included C4 and C5 dislocation structure and enlargement of the head. C4 and C5
dislocation fracture refers to the fourth and fifth vertebrae in the neck region of the
spine. The key implications are that there was severe neck injury. In the result, the
cause of death was determined to be a spine injury, consistent with motor vehicle
accident.

(d) Formal admissions

[33] Before the closure of the state’s case, all the accused made certain
admissions which were formally recorded in terms of section 220 of the CPA. These
are:

A The still photographs:
1. That Jason Kumm, the operations manager at Agri EC, Gqeberha,
downloaded still photographs from the camera situated at Bluewater
intersection with pole number P669, and prepared a still photograph
album containing still images Exh “J”
2. The still photographs he so downloaded, pertain to photographs that
were recorded by the said camera, which recorded the following: -
2.1 On 20 February 2024 at 12:04:13 a VW Polo with registration
numbers N[...] heading towards the Great Kei River direction. The
same vehicle on the same date at 13:45:35 appears stationary at the
Bluewater intersection. At 15:04: 38 same VW polo with registration
numbers N[...] appears moving towards the direction of East London.
2.2 A Toyota Landcruiser with registration numbers K[...] on 20
February 2024 at 15:00:54 stationary on the side of the road at
Bluewater intersec tion.
2.3 A Toyota Hilux with registration numbers K[...] on the same day
stationary on the side of the road at 15:01:24. The same Toyota Hilux
at 15:01: 35 appears moving towards the direction of East London.
B Photograph Album.
3. That on 25 Feb ruary 2024 Captain Augusto Johan Eric van Heerden
of the Local Criminal Record Centre of the South African Police
services, East London, photographed the VW polo with registration
number N[...] at South African Police Services, East London Police
station, and he compiled a photograph album. The said photograph
album is admitted into evidence as Exhibit “V”
C The Tracker ( N[...] )
4 That Warrant Officer Kwenene obtained a detailed tracker report for the
VW Polo with registration N[...] which was used by Accused No.3, by
means of a subpoena in terms of sectio n 205 of the Criminal
Procedure Act 51 of 1977. The said car tracker record is admitted into
evidence as Exhibit “W”
D The Firearms
5. That on 21 February 2024 Captain Kelvin Cecil Swartbooi of the Local
Criminal Record Centre of the South African Police Services, East
London, photographed the firearms after they were removed from the
safes as depicted in photographs 208 -236 of Exhibit C at the Local
Criminal Record Centre offices, East Londo n,
6. The said firearms were correctly sealed in an exhibit bag, kept safe and
forwarded to the Ballistics section of the SAPS Forensic Science
Laboratory, Gqeberha .
E The ballistic evidence
7. That Lieutenant Colonel Mandisi Mgwadleka of the Ballistics Section of
the SAPS Forensic Science Laboratory, Gqeberha , correctly examined
and tested the mechanisms of the rifles mentioned in counts 25, 27,
28, 29 and 30 of the Indictment and determined that, th e rifles were
manufactured or designed to discharge cen tre-fire ammunition and the
device mentioned in count 26 of the Indictment was manufactured or
designed to discharge rim -fire ammunition.
8. That Lieutenant Colonel Mandisi Magwadlela correctly determined that ,
despite the fact that the butt -stocks and/or the butt stock covers of the
rifles and shotguns mentioned in counts 25, 27, 28 and 29 of the
Indictment are broken, the said firearms are still able to discharge
ammunition.
9. That the butt -stock of the rifle mentioned in count 26 of the Indictment
is broken and loose but the rifle is able to discharge ammunition.
10. That the rifle mentioned in count 30 of the Indictment functions
normally without any obvious defects. The said ballistic report is
admitted into evidence as Exhibit “X”
F The cell phone evidence and Billing Data
11. That warrant officer Kwenene, by means of a subpoena in terms of
section 205 of Act 51 of 1977 , obtained detailed billing records for the
following cell phone numbers , 0[...], 0[...], 0[...] and 0 [...]. The said
billing records are admitted into evidence as
11.1. Billing for Cell phone number 0[...] Exhibit “Y”
11.2 Billing for Cellphone number 0[...] Exhibit “Z”
11.3. Billing f or Cellphone number 0[...] Exhibi t “AA”
11.4 Billing for Cellphone number 0[...] Exhibit “BB”
12. That Lieutenant Colonel Maria Susanna Beetge of the South African
Police Services, Cyber Crime Investigation Unit, Pretoria used the data
mentioned in paragraph 11 above to compile a chart depicting
communication between some of the cellphone numbers menti oned
above and towers used at the time of communication.
The said chart and the accompanying affidavit are admitted into
evidence as Exhibit “CC”
G. Medical reports
13. That on 21 February 2024 Hayden Aldred Luck was medically
examined by Dr Marais. The injuries he sustained are correctly
recorded in the medical report. The medical report is admitted into
evidence as Exhibit “DD”
14. That on 20 February 2024 Thandiswa Ma tross was medically
examined at Frere hospital by Dr.Taljaard. The injuries she sustained
are correctly recorded in the medical report. Her medical report is
admitted into evidence as Exhibit “HH.”
15. That on 21 February 2024 Nomatshayina Jacobs was medic ally
examined at Empilweni Gompo Community Health Care Centre by Dr.
Siyo. The injuries she sustained are correctly recorded in the medical
report. Her medical report is admitted into evidence as Exhibit “EE.”
16. That on 21 February 2024 Vuyiswa Gomba was medically examined by
at Empilweni Gompo Community Health Care Centre by Dr. Siyo. The
injuries she sustained are correctly recorded in the medical report. The
medical report is admitted into evidence as Exhibit “FF.”
17. That Captain Kevin Cecil Swartbooi obtained DNA swabs from the rifle
and the double barrel shot gun that were at the back of the Toyota
Landcruiser with registration number K[...]. The swabs were correctly
sealed, kept safe and forwarded to the Biology Section of the Fo rensic
Science Laboratory, Gqeberha.
18. That Detective Warrant Officer Phumelele Kwenene of the SAPS ,
Provincial Serious Violent Crime Unit collected a non -intimate Forensic
DNA Reference sample from Accused No. 2, Luthando Ngangelizwe,
which sample was c orrectly sealed, kept safe and forwarded to the
Biology section of the SAPS Forensic Science Laboratory, Gqeberha.
19. That Warrant Officer Zuko Qwaka , a qualified Forensic Analyst from
the Biology Section of the SAPS Forensic Science Laboratory,
correctly received and compared the DNA profiles obtained from the
rifle and a double barrel shot gun with the non -intimate Forensic DNA
reference sample obtained from Accused No. 2, Luthando
Ngangelizwe, and correctly concluded that the DNA results were a
match. W arrant Zuko Qwaka’s affidavit in this respect is hereby
entered into evidence as Exhibit “GG”.

Coupled with the admissions made by the accused, the state submitted 34 exhibits
whose contents and correctness were undisputed by the defence.2 Exhibit AA holds
no significance in these proceedings, as it was subsequently withdrawn by the state.

2 Exhibit A – Maboy Veni’s Statement. (this was submitted through cross -examination by counsel for
accused 2,3 and 4).
Exhibit B – Statement regarding Interview with suspect (accused 3).
Exhibit C – Photo Album compiled by Captain Kelvin Cecil Swartbooi – Scene of Accident.
Exhibit D – Pertaining TOLCRC Investigation on scene.
Exhibit E – Scotch Tape – Print lifted from clear sellotape that was on the chair inside offic e.
Exhibit F – Finger and Palm Prints of Odwa Dyabana – accused 1.
Exhibit G – Latent Scene Print of Odwa Dyabana – accused 1.
Exhibit H – Palm Prints of Odwa Dyabana (Accused 1) taken before court (the court chart).
Exhibit I – List of stolen property dur ing armed robbery.
Exhibit J – Images of a VW Polo and Toyota HiLux 4X4.
Exhibit K – Photo Album compiled by Sergeant N Tuze – Identification Parade.

Application in terms of section 174 of the CPA

[34] After the closure of the case for the prosecution, Mr Mgudlwa applied that
accused 3 be discharged in terms of section 174 of the CPA. The application was
dismissed for reasons advanced which will not be repeated in this judgment.

The defence case

[35] Following the dismis sal of the application, all accused testified in their
defence s. Accused 1’s version can be summarised as follows: on the day before the
incident, he was in Mdantsane where he met a woman and developed a fleeting
romance. Together with the girlfriend, they went to look for her friends at
Nompumelelo. However their encounter became sour when the girlfriend’s boyfriend
appeared, became jealous and assaulted him. After fleeing from assault, he took a
refuge in the forest. He met a kind stranger who was in company of a woman and a
child. The stranger took him to his house borrowed him a jersey and tended to his
injuries.

Exhibit L – Identification Parade Form.
Exhibit M – Images of Toyota Landcruiser.
Exhibit N -Fingerprints of Luthando Ngangelizwe ( accused 2) lifted from the Toyota Landcruiser’
fender.
Exhibit O – Finger and Palmprints of Luthando Ngangelizwe ( accused 2).
Exhibit P – Latent Scene Print Image of Luthando Ngangelizwe ( accused 2).
Exhibit Q – Fingerprints of Luthando Ngangelizwe ( accused 2) taken before court.
Exhibit R – Identification Parade Form (Sergeant Mkumatela).
Exhibit S – Photo Album compiled by Sergeant Z Njambe (Identification Parade).
Exhibit T – Affidavit in terms of Section 212 (4) of Act 51 of 1977 (Forensic Pathology Services).
Exhibit U – Formal Admissions by all accused persons.
Exhibit V - Photo Album of the VW Polo at the Police Station (Compiled by Captain A je Van Heerden) .
Exhibit W – Detailed Trip Report of the VW Polo.
Exhibit X – Affidavit in terms of Section 212 of the Criminal Procedure Act 51 of 1977 (Mandisi
Mgwadleka).
Exhibit Y – Cellphone records in respect of cell number 0 [...].
Exhibit Z – Cellphone records in respect of cell number 0 [...].
Exhibit AA – Cellphone records in respect of cell number 0 [...].(exhibit withdrawn).
Exhibit BB – Cellphone records in respect of cell number 0 [...].
Exhibit CC – Affidavit in terms of Section 213(1) and (2)(a) of the CPA 51 of 1977 (M S J Beetge).
Exhibit DD – Medico -Legal Examination (J88) in respect of Hayden Aldred Luck.
Exhibit EE – Medico -Legal Examination (J88) in respect of Nomatshayina Jacob.
Exhibit FF – Medico -Legal Examination (J88) in respect of Vuyiswa Vivienne Gomba.
Exhibit GG – Biology Report p repared by Warrant Officer Zuko Qwaka.
Exhibit HH – Affidavit in terms of Section 212(4) Act 51 of 1977 ( Physical Examination of Thandiswa
Matross).

[36] Accused 1 later went to look for Minqi’s tavern. On the way he was spotted
by another stranger who pointed him out to th e community members , saying “ there
he is .” He was subsequently caught. Accused 1 testified that after being
apprehended he was severely assaulted and sustained injuries on his face. Police
took him to the collision scene and later to the police station. At the police station
some police officers suggested that he be taken to the D r. After the Dr’s treatment,
he was detained. Accused 1 denied that he committed crimes as alleged by the
state.

[37] Accused 2 testified that around 13:30, he left his village in Mooiplaas to head
to East London. He hitchhiked and spotted a Toyota Landcruiser being driven
recklessly at a high speed. This Toyota Landcruiser was being followed by a bakkie.
The driver stopped and offered him a lift. He got at rear section at the d river’s
request to hold a cupboard. While riding in the speeding vehicle, he noticed a firearm
lying nearby. He thought it might be a toy gun.

[38] The Toyota Landcruiser was soon chased by police. As it was speeding, he
heard a loud bang and found himself on the ground having lost consciousness.
When he regained consciousness, he realised that an accident had occurred.
accused 2 denied his involvemen t in the commission of the crimes as alleged by the
state. Furthermore, he denied that Mama Jack’s watch and a set of 5 ammunitions
were found in his possession during the arrest. When asked to explain about the
DNA found in Luck’s firearms that were in the Toyota Landcruiser, he testified that
the firearms might have touched him during the accident, potentially transferring his
DNA.

[39] Accused 3, a Bolt driver testified that on the day of the incident , he had
been driving a child to school as usual. Around 9:00, he received a request via the
Bolt App to transport passengers to Blue water for a fare of R600. To avoid Bolt
commission, he made a private deal with the passengers , cancelling the formal trip
authorised by Bolt. As a result, he relied on t he passangers’ directions since the App
was off. Although delayed by road constructions on the way, he eventually dropped
off the passengers before they could reach their destination. Upon returning, he
noticed his mud flaps were missing and later finding them. While fixing the mud
flaps, he discovered that the front number plate had been dislodged and was lying
under the car.

[40] Accused 3 admitted being in the vicinity for legitimate purposes as depicted
in the still photographs but denied involvemen t in the crimes. He also confirmed
phoning Mpusula to assist in fetching the child from school but denied making a
warning statement to the police. Accused 3 confirmed knowing accused 1 and 2, but
claimed no knowledge of accused 4. He testified that he cou ld not recall the
identities of his passengers that day but was certain that accused 1 and 2 were not
among them.

[41] Accused 4 testified t hat on the day of the incident he was with his girlfriend
Bukiwe at her place trying to resolve a conflict that they had. He testified that his
injuries from the days prior made it impossible for him to commit the crimes, as he
was limping. He also provided h is cell number to the investigating officer. When
confronted with the cell phone records showing his cell phone was used near Blue
Water during robbery, he denied this, insisting that his cell phone was non=functional
at that stage. Accused 4 confirmed kno wing accused 1 but claimed no knowledge of
others.

[42] Accused 4 raised concerns about the Id parade procedure, alleging that the
I/O took his photograph beforehand. He also claimed that although he was given the
opportunity to change clothing and direc tions which he declined, he was not allowed
to choose the participants in the Id parade.

Issues

[43] The issues for determination are whether the accused were correctly
identified as perpetrators of the crimes in question. Allied to that , the court must
examine whether the perpetrators acted in common purposes in order to act in
furtherance of a shared criminal design. Another point in issue is whether the
perpetrators collectively possess ed unlicenced firearms and ammunitions as alleged
by the state. Furthermore, the court must determine whether accused 1 had intention
to kill the deceased and whether he had intention to attempt to kill 1 3 passengers
including one motorist.

The l egal Principles

[44] In South African law, the standard of proof that has been consistently
reaffirmed through various cases3, is proof beyond reasonable doubt. For an
acquittal, the version of the accused need only be reasonably possible true. In
Shakell v S4, the court held per Brand AJA,

‘A court does not have to be convinced that every detail of an accused’s
version is true. If the accused’s version is reasonably possibly true in substance
the court must decide the matter on the acceptance of that version. Of course it
is permissible to test the accused’s version against the inherent probabilities.
But it cannot be rejected merely because it is improbable; it can only be
rejected on the basis of inherent probabilities if it can be said to be so
improbable that it cannot reasonably possibly be true.’

[45] Where identity is at issue, the court must approach witness’ evidence with
caution. The caution approach assists to ensure reliable identification. This means
that the state must present credible , reliable and sufficient evidence to meet the high
burden o f proof demonstrating accused’ identity beyond reasonable doubt.

[46] The principle in S v Mthethwa5 (Mthethwa) serves as a guiding authority in
assessing whether the perpetrators of crimes were reliably identified. In this case the
court had the following to say:

‘Because of the fallibility of human observation, evidence of identification is
approached by the Cou rts with some caution. It is not enough for the identifying
witness to be honest: the reliability of his observation must also be tested. This
depends on various factors, such as lighting, visibility, and eyesight; the proximity

3 S v Ntsele 1998 (2) SACR 178 (SCA); S v Jackson 1998 (1) SACR 470 (SCA) @ 476 e-f.
4 [2001] 4 All SA 279 (SCA) at 288 e-f.
5 1972(3) SA 766 AD at 768a -c
of the witness; his opportu nity for observation, both as to time and situation; the
extent of his prior knowledge of the accused; the mobility of the scene;
corroboration; suggestibility; the accused’s face, voice, build, gait, and dress; the
result of identification parades, if any , and, of course, the evidence by or on behalf
of the accused. The list is not exhaustive. These factors, or such of them as are
applicable in a particular case, are not individually decisive, but must be weighed
one against the other, in the light of the totality of the evidence, and the
probabilities; ...

[47] Although th is case involves numerous legal principles , to contextualise issues
I will pause here and proceed to the discussion.

Discussion

[48] Counsel for the state sought convictions for all accused making concessions
regarding counts 26,31,32 and 33. These counts pertain to possession of unlicenced
firearms under section 3 (1) of the Firearms Control Act 60 of 2000. Notably, counsel
for the state highlighted Exhibit ‘ C’, which shows, among other things, that the
firearm in count 26 was incapable of discharging the ammunitions. This firearm was
among those stolen during the robbery at Luck’s home.

[49] The debate surrounding accused 3 centres on his absence from the crime
scenes. Couns el for the state argued that despite his absence, it can be inferred that
he had prior agreement with accused 1 to participate in the commission of the
crimes. The state’s argument is based on the discovery of accused 3’s VW polo,
without front number plat e , approximately 200 -300 metres from the first scene. This
suggests that the vehicle may have been used as a gateway car after the
commission of the crimes.

[50] In contrast, counsel for accused 1 submitted that the contradictions in the
state witnesses ’ testimony regarding accused 1’ s clothing suggest an honest mistake
in relation to the perpetrator’s identity. This includes the mistake made by Human,
who testified that that he saw accused 1 jumping out of the stolen Toyota
Landcruiser after it overturned. Most importantly, so he arg ued, the credibility of the
Id parade and the presence of accused 1’s fingerprints on the masking tape
allegedly lifted at the scene are questionable. In support of this proposition, accused
1’s counsel pointed out that Luck’s evidence indicated that n o fingerprints were lifted
from his premises.

[51] Counsel for accused 2, 3, and 4 argued for their acquittal in respect of all
charges. He argued that their version of events is more probable than that of the
state. Counsel argued that it was plausible for the stolen items to be found where
accused 2 was because he had coincidentally hitchhiked a stolen vehicle. He also
disputed the claim that the items were found in accused 2’s pocket, given that he
was unconscious after the accident. Additionally , counsel raised similar concerns to
those of accused 1’s counsel specifically regarding the Id parade that implicated
accused 4. Furthermore, he argued that the evidence linking accused 3 to the
crimes is insufficient to sustain a conviction, particularly in light of his detailed
explanation for being in the vicinity of the first crime scene.

[52] My duty is to weigh up all the elements which point towards the guilt of the
accused against all those that indicate his innocence. In addition, I have to evaluate
the evidence in its totality taking into account the inherent strengths and
weaknesses, probabilities and improbabilities from both sides. Ultimately, I must
analyse and decide whether the burden weighs so heavily so as to exclude any
reasonable doubt about the accused’ guilt.6

[53] Despite the defence’s oral submissions, I am satisfied that the state has met
the legal requirements as outlined in Mthethwa7. The overwhelming evidence
suggests that accused 1,2 and 4 were at the crime scene. The chain evidence
regarding the Id parade s was not d isputed by the defence , instead the defence
argued that the Id parade s were improperly conducted due to differences in the
height width and clothing among the participants. However, this argument is
unconvincing given that accused 1 was represented during the first Id parade. After
considering the evidence from those in charge of the Id parade s , I conclude that
both were properly conducted. The reliability of the Id parade s is further supported

6 S v Chabalala 2003 (1) SACR 134 (SCA) Heher AJA at 140 a-b.
7 Fn 3 above.
by the fact that some witnesses pointed out irrelevant persons including Gelem who
failed to identify anyone, indicating an objective process.

[54] At this point it is further apposite to present the corroborative evidence which
confirms that the perpetrators were correctly identified. The incidents occurred during
daylight. The witnesses to wit Veni, Khangelana and Luck , though terrified, identified
accused 1,2 and 4’s faces. Accused 1 and 2 were arrested immediately after the
commission of the crimes. Accused 1 ’s spontaneous admission to Sinkwa about
stealing a car aligns with Human’s testimony who saw him jumping out of the Toyota
Landcruiser after the accident. This is also corroborated by the evidence of Roestorf
and Constable Ralton Nelson who found the jacket and the hat which items were
identified as those worn by accused 1 during the commission of the crimes.
Furthermore accused 1 and 2 were found in possession o f the stolen goods
including the Toyota Landcruiser immediately after the commission of the crimes in
question. Accused 2 was found in possession of the wristwatch belonging to Mama
Jack as well as ammunitions tucked in his pocket. This then reminds me of the
doctrine of recent possession which infers guilt when someone is found in
possession of the stolen goods soon after the theft.

[55] I acknowledge the principle in S v Skweyiya8(Skweyiya) where the court noted
that the nature of the article is an element in the determination of what is recent. In
Skweyiya9, the court stated that if the article stolen is of the type which is usually and
can easily and rapidly be disposed of, anything beyond a relatively short period will
usually not be recent. In the matter under consideration, the state presented a
distinct scenario. Although watches, ammunitions and cars can easily move from
one hand to the next, the accused were pursued by the police and community
members after the crime s. It is therefore clear that the doctrine of recent possession
applies, particularly given the immediate recovery after the chase.

[56] Additionally the prints found at the scene and those found at the Toyota
Landcruiser’s fender including the accused 2’s DNA found at Luck’s firearms carry a
strong objective probative weight in linking both accused 1 and 2 in the commission

8 1984 (4) SA 712 (A), see also S v Parrow 1973(1) SA603 (A) at 604 B -E.
9 Ibid.
of the crimes . The fingerprints expert s testified in coherent, consistent and credible
manner in explaining the process of the lifting of the fingerprints and DNA in question
until the final analysis was conducted. There is no evidence to rebut the expert s’
testimonies in this regard.

[57] The presence of the accused 2’s DNA which was lifted in Luck’s firearm
contradicts his alibi and supports Luck’s testimony, suggesting that he was present
at the scene of crimes and participated when the firearms were lifted in the safes.
Accused 2’s alibi is indeed improbable. It is implausible that a driver fleeing from
police would offer a lift to bystanders. Luck’s explanation on this p oint was
convincing to the court.

[58] It is therefore crucial to mention that the evidence of accused 1,2 and 4
canno t be reasonably possibly true in the circumstances. Their evidence need a lot
to be desired. There is no valid explanation why the alibi of accused 4 w as not put to
the witnesses for them to comment. Even if such version were put to the witnesses,
the overwhelming evidence negate the alibi in question .

[59] Furthermore, the contradictions regarding accused 1’s clothing, as highlighted
by both the state a nd the defence are immaterial. Despite these minor discrepancies,
the probabilities strongly suggest his involvement as one of the perpetrators. Even
applying cautionary rules to Human’s single testimony about seeing him jumping out
of the veered Toyota Landcruiser, there is substantial corroborating evidence
implicating him in the crimes.

[60] Despite the overwhelming evidence linking accused 1,2 and 4 the same
cannot be said about accused 3. The state relied on circumstantial evidence which is
governed by two principles and these are: The inference sought to be drawn must be
consistent with the proven facts. The proven facts must be such that they exclude
every reasonable possibility save the one to be drawn. In relation to accused 3, the
state faces significant challenges. His version raises a questions about familiarity
with accused 1, the warning statement suggesting prior agreement for a business
trip with accused 1 and others as well as his delay in leaving the crime vicinity after
dropping off the passengers.

[61] Given accused 3’s testimony, where he provided detailed explanations and
answered state’ questions, it is difficult to exclude every reasonable inference. His
explanation as a bolt driver, attributing delays to a tyre problem, road construction
and a lost number plate remains unrefuted and creates a doubt about his guilt.

The doctrine of common purpose and joint possession of unlicenced firearms and
ammunitions .

[62] Regardless of the overwhelming evidence against accused 1, 2 and 4, the
state bears onus of proving beyond reasonable doubt that the accused acted in
concert to achieve a common goal. At paragraph 21 of its judgment, t he
Constitutional Court (CC) in Thebus and Another v S10 noted that the principles laid
down in Mgedezi v S11 were since refined and developed by the Supreme Court of
Appeal in various authorities.12 The CC per Moseneke J (with Madala J, Ngcobo J,
O’Regan J, Chaskalson CJ, Langa DCJ, Mokgoro J, Yacoob J, Ackerman J and
Goldstone J concurring) re-affirmed the principles of common purpose and held:

‘[18] The doctrine of common purpose is a set of rules of the common law that
regulates the attribution of criminal liability to a person who undertakes jointly with
another person or persons the commission of a crime. Burchell and Milton define
the doctrine of c ommon purpose in the following terms:

“Where two or more people agree to commit a crime or actively associate in a
joint unlawful enterprise , each will be responsible for specific criminal conduct
committed by one of their number which falls within their common design.
Liability arises from their ‘common purpose’ to commit the crime”.

Snyman points out that “the essence of the doctrine is that if two or more people,
having a common purpose to commit a crime, act together in order to achieve
that pu rpose , the conduct of each of them in the execution of that purpose is

10 2003 (6) SA 505 (CC);[2003] ZACC 12; 2003 (10) BCLR 11100 (CC).
11 1989 (1) SA 687 (A).
12 S v P etersen 1989(3) SA 420 a; S v Yelani 1989 (2) SA 43 (A); S v Jama and Others 1990 (4) SA
484 (A); S v Khumalo en Andere 1991(4) SA 310 (A); S Singo 1993(2) SA765(A).
imputed to the others”. These requirements are often couched in terms of which
relate to consequence crimes such as murder.’

[19] The liability requirement of a joint criminal enterprise fall into two categories.
The first arises where there is prior agreement, express or implied, to commit a
common offence. In the second category , no such prior agreement exists or is
proved. T he liability arises from an active association and participation in a
common criminal design with the requisite blameworthy state of mind .’ [footnotes
omitted]

[63] In the present case, the evidence does not prove any such prior agreement.
Notwithstanding this, the overwhelming evidence explicitly demonstrate a joint
enterprise among the accused 1, 2 and 4 with all actively participating in the criminal
activities.

[64] Revisiting the applicability of common purpose to joint possessions o f firearms
and ammunitions is essential. The court’s consideration would involve examining
whether all the accused shared knowledge, intent and active participation regarding
the firearms and ammunitions, beyond general participation in the crimes.

[65] The joint possession of Luck’s firearms seems evident , given the accused’
collective actions during the commission of the crimes, including breaking safes and
escaping with firearms. This shared involvement supports the notion of joint
possession.

[66] To determine joint possession for specific ‘firearms ’ used during the
commission of the crimes pointing at Luck and Gelem as well as hitting at
Khangelana, it is crucial to assess whether all the accused had knowledge , intent
and control over those ‘firearms ’ particularly if their use was part of the shared
criminal design. The evidence of accused 1 and 2’s possession of gun like objects
remains unshaken. Given the manner in which the crimes were committed including
active participation by accused 1 and 2 , accused 4 cannot be disassociated from the
use of the ‘firearms ’ which were used to threaten Luck and his employees during the
commission of the crimes. It is conclusive that when he participated, he joined
accused 1 and 2 who were already armed, foreseeing the possibility of the ‘firearm ’
use and reconcil ing himself with it. Clearly, his intention was to commit crimes
together with others using gun like weapons to threaten victims and facilitate escape
with stolen goods and Luck’s firearms.

Crimes against accused 1 only

[67] Counsel for the state cited S v Qeqe13 (Qeqe) and argued that accused 1 ,
while escaping in Luck’s Toyota Landcruiser and collided with the Toyota quantum
as well as a polo intended to attempt to kill the 1 3 passengers in the Toyota quantum
including a motorist. He further argued that accused 1 had the intention to kill the
deceased. Counsel asserted that in both instances, accused 1’s intention was in the
form of dolus eventualis , meaning he foresaw the possibility of death occurring and
reconciled himself with that possibility.

[68] The well-known legal position is that intention is ordinarily inferred from the
facts of the case through inferential reasoning. For intention in the form of dolus
eventualis , the test is subjective, involvin g both conative and cognitive elements.
This subject ive test must not be conflated to an objective test which is applicable in
cases involving negligen ce is an element.

[69] The facts in Qeqe14 are distinguishable from the present case. In Qeqe15 the
accused dr ove a stolen vehicle, striking children on the sidewalk while being pursued
by the police. The court found dolus eventualis based on clear evidence, including
the sketch plan detailing the motor vehicle and the children’s position at the time of
the collisi on. Notably , Qeqe16 predates the Supreme Court of Appeal’s 17thorough
examination of dolus eventualis in motor vehicle collision cases .

[70] The following key considerations are crucial in the circumstances of this case :
the accident’s circumstances surrounding the accident are not as clearly detailed as

13 2012 (2) SACR 41 (ECG).
14 Fn 13 above.
15 Ibid.
16 Ibid.
17 See Humphreys v S ( 424/2012) [2013] ZASCA 20; 2013(2) SACR 1 SCA.
in Qeqe.18 The deceased died over three months after the collision. The witnesses
only reported hearing a bang at the back of the Toyota Quantum and could not
provide further insight into what actually happened. The evidence of some of the
witnesses demonstrate accused 1 driving at a high-speed overtaking inconsiderately
and failing to stop at an intersection.

[71] Therefore , in light of the aforesaid , it is reasonable to infer that accused 1, as
an adult who was speeding and overtaking other cars recklessly foresaw the
possibility of the potential harm caused by his manner of driving including death. The
key question is whether he subjectively reconciled himself with that possibility. The
evidence is insufficient to demonstrate that accused 1 had reconciled himself with
the risks invo lved. Instead, the evidence overwhelmingly suggest s that accused 1
was trying to escape police pursuit driven by false confidence and bravery in
outrunning them. Therefore, the convictions on 1 3 counts of attempted murder and
one count of murder cannot be sustained.

[72] Despite the insufficiency of evidence in the attempted murder and murder
charges, one must examine whether accused 1 is not criminally liable for the
negligent killing of the deceased. The test for negligence was summarised in the
well-known judgment of Kruger v Coetzee19where the court held that if a reasonable
person would have foreseen the possibility of harm and would have taken
reasonably steps to prevent it from happening, and the person in question did not do
so, the element of negligence is establis hed. In casu , accused 1 failed to exercise
the standard of care expected of a reasonable person in the circumstances.
According to Dr Khunyuza, the deceased’s injuries were consistent with motor
vehicle accident. Therefore, accused 1’s actions namely driving a motor vehicle
reckless ly as demonstrated by the witnesses and accused 2 as well as the failure to
observe traffic rules showing disregard for safety are all factors that contributed to
the deceased’s death.


18 Ibid.
19 1966 (2) SA 428 A at 430 E -H.
[73] Furthermore, given accused 1’s reckless manner of driving, as observed by
the state witnesses including accused 2, a conviction for reckless driving that caused
harm to the passengers in the Toyota quantum and a motorist is inescapable.

The convictions

[74] The final issue concerns the rule against duplication of convictions. While the
state has a discretion to frame charges as it deems fit, the court retains a discretion
to guard against duplicative convictions. This is necessary to promote fairness of the
trial on both si des and to avoid prejudice to the accused. Punishing an accused
multiple times for a single offence would be unfair and violate a principle of justice.

[75] In my view, count 1 (pointing of a firearm at Luck) and count 2 (robbery with
aggravating circumstances ) constitute a single transaction. The accused’ actions,
specifically putting Luck in a bathtub with hot water, constitute a separate charge of
attempted murder. This is further supported by accused 2’s declaration who stated
that Luck’s throat would be slit like a pig , indicating a clear intent to attempt to kill.

[76] Similarly, the charges of kidnapping stand as the accused clearly formed
distinct intentions, including restraining the employees’ freedom by confining them in
one room while committing the crimes. Regarding the pointing of a ‘firearms ’ against
Gelem, it is clear from her evidence that her cell phone was not among the stolen
items. However. there is overwhelming evidence that the accused demanded safe
keys, pointed a weapon believed to be a firearm at her.

[77] It may well be argued that this was a single intent in pursuit of robbery against
Luck. However, the ‘firearm’ and the demands were directed to a different person to
wit Gelem. The conviction outcome demonstrates that although Gelem was harmed,
her cell phone was never stolen, resulting in a competent verdict20.


20 Pursuant to section 260 (1) ( c) of the Criminal Procedure Act 51 of 1977, if the evidence on a
charge of robbery or attempted robbery does not prove the offence of robbery or, as the case may
be, attempted robbery, but -… the offence of pointing a firearm, air -gun or air -pistol in contravention of
any law, the accused may be found guilty of the offence so proved…
[78] Regarding counts 26,31, 32 and 33, the state’s concessions are correct. The
essential elements of the offences of unlawful possession of firearms as
contemplated under section 3 of the Firearms Control Ac t 60 of 2000, were not
proved beyond reasonable doubt.

Verdict

[79] In the result, the verdict is pronounced as follows:

1. Accused 3 is found not guilty and discharged in respect of all counts.
2. Count 1 - pointing of a firearm in contravention of section 120(6) read with
section s 1,121, and Schedule 4 of the Firearms Control Act 60 of 2000 -
(Accused 1,2 and 4 are found not guilty and discharged).
3. Count 2 - Kidnapping (Accused 1,2 and 4 are found guilty as c harged).
4. Count 3 -Robbery with aggravating circumstances as defined in section
1(1)(b) of the Criminal Procedure Act 51 of 1977 - (Accused 1,2 and 4 are
found guilty as charged).
5. Count 4 -Robbery with aggravating circumstances as defined in section 1
(1) (b) of the Criminal Procedure Act 51 of 1977 ( Accused 1,2 and 4 are
found not guilty and discharged. However, accused 1,2 and 4 are found guilty
to pointing of a firearm in contravention of section 120(6) read with
section 1,121 and Schedule 4 of the Firearms Control Act 60 of 2000 , a
competent verdict.
6. Count 5 - Attempted murder (Accused 1,2 and 4 are found guilty as charged).
7. Count 6 -Kidnapping ( Accused 1,2 and 4 are found guilty as charged).
8. Count 7 - Kidnapping (Accused 1,2 and 4 are found guilty as charged).
9. Count 8 - Kidnapping (Accused 1,2 and 4 are found guilty as charged).
10. Count 9 - Kidnapping (Accused 1,2 and 4 are found guilty as charged).
11. Count 10 -22, in respect of accused 1 only ( Accused 1 is found not guilty
and discharged in respect of all counts) .
12. Count 23 -Murder, in respect of accused 1 only ( Accused 1 is found not
guilty and discharged ). However, Accused 1 is found guilty to culpable
homicide, a competent verdict .
13. Count 24 - Reckless driving in contravention of section 63 (1), read with
section 89 (1) and 89 (5) (a) of the National Road Traffic Act No. 93 of
1996, in respect of accused 1 only (Accused 1 is found guilty as charged).
14. Count 25 - Unlawful possession of a firearm in contravention of section
3(1)(a), read with sections 1, 120 (1), 121 and Schedule 4, of the Firearms
Control Act 60 of 2000 ( Accused 1,2 and 4 are found guilty as charged).
15. Count 26 - Unlawful possession of a firearm in contravention of section
3(1) (a), read with sections 1,120 (1), 121 and Schedule 4, of the Firearms
Control Act 60 of 2000 - (Accused 1,2 and 4 are found not guilty and
discharged).
16. Count 27 - Unlawful possession of a firearm in contravention o f section
3(1) (a), read with sections 1, 120 (1), 121 and Schedule 4, of the Firearms
Control Act 60 of 2000 (Accused 1,2 and 4 are found guilty as charged).
17. Count 28 - Unlawful possession of a firearm in contravention of section
(3)(1) (a) , read with se ctions 1, 120 (1), 121 and Schedule 4, of the
Firearms Control Act 60 of 2000 (Accused 1,2 and 4 are found guilty as
charged).
18. Count 29 - Unlawful possession of a firearm in contravention of section
(3)(1) (a) , read with sections 1, 120 (1), 121 and Schedule 4, of the
Firearms Control Act 60 of 2000 (Accused 1,2 and 4 are found guilty as
charged).
19. Count 30 - Unlawful possession of a firearm in contravention of section
(3)(1) (a) , read with sections 1, 120 (1), 121 and Schedule 4, of the
Firearms Control Act 60 of 2000 (Accused 1,2 and 4 are found guilty as
charged).
20. Count 31 - Unlawful possession of a firearm in contravention of section
(3)(1) (a) , read with sections 1, 120 (1), 121 and Schedule 4, of the
Firearms Control Act 60 of 2000 Accused 1,2 and 4 are found not guilty and
discharged).
21. Count 32 - Unlawful possession of a firearm in contravention of sect ion
(3)(1) (a) , read with sections 1, 120 (1), 121 and Schedule 4, of the
Firearms Control Act 60 of 2000 Accused 1,2 and 4 are found not guilty and
discharged).
22. Count 33 - Unlawful possession of a firearm in contravention of section
(3)(1) (a) , read wit h sections 1, 120 (1), 121 and Schedule 4, of the
Firearms Control Act 60 of 2000 Accused 1,2 and 4 are found not guilty and
discharged).
23. Count 34 - Unlawful possession of ammunition in contravention of
section 90, read with sections 120 (1), 121 and Sched ule 4 of the
Firearms Control Act, 60 of 2000 (Accused 1,2 and 4 are found guilty as
charged)



______________________ _
N CENGANI -MBAKAZA
ACTING JUDGE OF THE HIGH COURT


APPEARANCES :

Counsel for the state : Adv A. Nohiya
DPP, Makhanda

Counsel for accused 1 : Adv A. C. Erasmus
Instructed by : Legal Aid -SA

Counsel for accused 2,3 and 4 : Adv L. Mgudlwa
Instructed by : Legal Aid -SA

Date s Heard : 25, 26,27,28 February 2025
03,04,05,06,07 March 2025
01,02,22,23,24,29,30 April 2025
01, 02,29 May 2025
Date Delivered : 30 May 2025