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IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION: MTHATHA]

Case No. CC10/2017

In the matter between:

THE STATE

and

PHIWOKUHLE MSUTHU Accused No. 1

THANDISIZWE NTUMBUKANA Accused No. 2

WANELE NDLEBE Accused No. 3

MCEBISI POYO Accused No. 4

LUNDI GUMENGE Accused No. 5

WONKE NDLEBE Accused No. 6
___________________________________________________________________
JUDGMENT
___________________________ ________________________________________
JOLWANA J
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Introduction.

[1] The accused appeared in this Court on numerous charges of aggravated
robberies , murders, attempted murders, unlawful possession of firearms and
ammunition. These offences were all comm itted in Mthatha, Lusikisi ki, Ngqeleni and
Tsolo within the O.R. Tambo District Municipality. All the accused who were all
legally represented pleaded not guilty to all the charges. All of them did not disclose
the basis of their defence. When the accused appeared in this Court, accused no.4
had already reportedly passed on. At the close of the case for the prosecution, all
the accused applied to be discharged in terms of section 174 of the Criminal
Procedure Act 51 of 1977 (CPA)1.

[2] In a judgment delivered on 17 September 2021 , accused No.2 was discharged on
all the charges save for the alternative count of conspiracy to commit the Lusikisiki
robbery on 14 September 2015. However, he passed on before the conclusion of
the submissions on the merits of the case. The application to be discharged in terms
of se ction 174 of the CPA by both accused both no.3 and 6 on all the charges
preferred against them was granted. Accused no.1 was charged with all the 17
charges listed in the indictment . He applied for a discharge only in respect of counts
3, 4, 5, 6, 8, 9,10, 11, 16 and 17. He did not apply to be discharged in respect of
counts 1, 2, 7, 12 and 13. His application in respect of counts 3, 4, 5, 6, 8, 9, 10 and
11 was granted. However, in respect of counts 16 and 17 which are in respect of the
Lusikisiki robbery committed on 14 September 2015, his application was refused.
Accused no. 5 applied to be discharged from prosecution only in respect of counts
12, 13, 14, 15, 16 and 17. He did not apply to be so discharged in respect of counts
7, 8, 9, 10 and 11. His application to be discharged in respect of counts 12, 13, 14,
15, 16 and 17 was refused.

[3] This judgment is therefore concerned with accused no.1 and 5 who are the only
remaining accused persons , the others having died or having been discharged in

1 Section 174 provides that: If, at the close of the case for the prosecution at any trial, the court is of
the opinion that there is no evidence that the accused committed the offence referred to in the c harge
or any offence of which he may be convicted on the charge, it may return a verdict of not guilty.
terms of section 174 of the CPA. The remaining charges are all in respect of the
armed robberies in Lusikisiki on 14 September 2015 , at St Barnabas Hospital in
Ngqeleni on 2 November 2015 and Tsolo on the N2 on 4 November 2015. The
charges that accused no.1 still faces are counts 1, 2, 7, 12, 13, 14, 15, 16 and 17.
Accused no.5 is faced with counts 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17. I will
henceforth refer to counts 1 and 2 as the Lusikisiki robbery, counts 7, 8, 9, 1 0 and 11
as the Ngqeleni robbery and counts 12, 13, 14, 15, 16 and 17 as the Tsolo robbery
respectively. The principal question before this Court is whether the State has
proved beyond reasonable doubt , the two accused’ s involvement in these
aggravated robberies , and whether they are liable to be convicted on one, some or
all these charge s. The trite legal position in this regard which has remained
unshaken for sometime was aptly articulated more than two and a half decades ago
by Nugent J in Van der Meyden2.

The evidence of the State against accused no.1.

[4] The evidence of the State against accused no.1 consists mainly of his confession
statement made to brigadier Manyana and the evidence of a section 204 witness,
Anele Gqweta (Gqweta). However, the evidence of the State does not start and end
with his statement which I ruled admissible and the evidence of Gqweta. There are
other witnesses that the State called as well as circumstantial evidence placed
before court in an effort to establish the guilt of the accused. The evidence of State
witnesses herein is not necessarily presented in the order in which they were called
or in any particular sequence .

[5] The evidence of warrant officer Carstens was in connection with the recovery of
firearms in Elsies River, Cape Town whe re some of the accused who are now not
before court were arrested on 13 November 2015. He was employed by the South
African Police Ser vice and stationed at the Local Criminal Record Centre (LCRC) in
Bellville and had attended to the Elsies River crime scene and took photographs and
compiled a photo album. In that crime scene he took photographs of an R4 rifle with
no serial number which had 27 cartridges, a.45 Norinco pistol also with no serial

2 S v Van der Meyden 1999 (1) SACR 447 at 448 h and 450 a -b.
number, on e magaz ine with six cartridges, a Tauru s 9mm pistol with no serial
number. It had one magazine with 16 cartridges, a Beretta 9mm pistol with no serial
number. It had one magazine with 16 cartridges. In that crime scene, accused no.2
and accused no.6 were arrested and a Volkwagen Golf vehicle . I underst and that,
the charges relating to the unlawful possession of these firearms were dealt with or
are being dealt with in Cape Town.

[6] The evidence of Mrs Rwetshe -Jama was in respect of count 15. She testified that
on 4 November 2015 in the afternoon at about 17:00 she and her husband left
Mthatha going to Kokstad to fetc h their son . They drove past the Tsolo junction on
the N2. They were driving a Mercedes Benz ML63. As they approached the Tsitsa
Bridge about 10 kilometers or so to Qumbu she observed that it was chaotic on the
road a head as if there was a car accident and the veh icles were not moving. A man
carrying a torch knocked on the window on the driver’s side. This man had covered
his face and had a panama hat on his head. The driver’s window had been opened
by her husband who was driving. This man reach ed for the ignit ion and took the key.
She realised that on her side there was another man who was carrying a firearm.
The man who reached for the ignition and took the key s boarded the vehicle after
her husband had alighted with her hands raised. The man on his side wa ited for her
to collect her items like the charge r, the cellphone and her hand bag. She then
alighted from the vehicle. Another man ordered them to lie down on the road. Their
vehicle left with these men leaving them lying down there. Before the vehicl e left she
saw other men emerging and boarding the vehicle and four men took the back seat
while the other two were in the front. The vehicle turned and drove towards the
Mthatha direction. They later got a hike back to Mthatha where they reported the
incident at Madeira Police Station. They used a n iphone to locate the movement of
the vehicle and they could locate it stationery somewhere near Mthatha . They
ultimately found it with the ignition key having been left in the vehicle.

[7] Sergeant Mark Cor nelius testified that in November 2015 he worked for the
SAPS. He was attached to the Canine Unit as a dog handler. He was based in
Pineland s, Cape Town. He was on duty on 13 November 2015 with constable Clint
Africa. They were the ones who chased the Volkswagen Golf vehicle in connection
with the Elsies River crime s cene together with their other colleagues. He arrested
accused no.3. Sergeant Bailey testified that he was part of the team that dealt with
the Elsies River incident on 13 November 2015 a nd he recovered a Taurus pistol
9mm firearm from accused no.3. Constable Clint Africa also testified about that
incident. He described the Volkswagen Golf vehicle as a Golf 6 which was white in
colour and he arrested accused no.2 during that incident in a garage of a certain
house and recovered the Taurus 9mm pistol firearm from him. The state called
sergeant Qubilanga, also a member of the SAPS based in Cape Town. He was part
of the team that was called to the Elsies River incident and he recovered a 9 mm
Norinco firearm.

[8] Sergeant George was also called. He testified that he was a Canine Unit
member and also participated in dealing with the Elsies River incident on 13
November 2015 and recovered and R4 rifle in the VW Golf 6 vehicle. Warrant officer
Van Wyk, a member of the National Interve ntion Unit (NIU) testified that he and his
colleagues received in formation on 31 January 2016 that suspects that were wanted
by the Directorate for Priority Crime Investigatio n (DPCI) in the Eastern Cape would
be in Khayelitsha , Cape Town. They went there at about 21:40 to a house at Ilitha
Park. They entered the hous e, and found three black males and one female. They
introduced themselves and explained their presence there. He approached accused
no.1 who had a sling bag on him. He searched him and took the sling bag which he
opened in front of accused no.1. He fou nd a 9mm silver pistol with its serial number
filed off. He asked accused no.1 for a licence of this firearm which he , out of his own
volition , said it was his firearm. However, he could not produce a licence for it. He
arrested him and explained his co nstitutional rights to him. Members of the DPCI
identified accused no.1 as a wanted suspect in connection with a Tsolo robbery.
The DPCI members who were there were warrant officer Qokoyi and captain
Maqubela. They searched the rest of the premises afte r which they went to Harare
Police Station where he again read the rights of the accused now reading them from
the SAP14A notice of rights. Thereafter he handed accused no.1 to the DPCI
members . Warrant officer Van Wyk produced the firearm that he recov ered from
accused no.1 and testified about it. He showed that its serial number was erased in
at least 5 areas. He testified that he handed both the firearm and accused no.1 to
warrant officer Qokoyi and captain Maqubela.

[9] Under cross -examination war rant officer Van Wyk testified that he read accused
no.1 constitutional rights from a pocket book when he arrested him at that house.
He read him his rights again in the SAP14A register at Harare Police Station.
However, at that stage there was no SAP14A document that he gave to accused
no.1. He just read his rights in an SAP14A register that no longer had any other
blank pages as the logistics stores were closed at the time. He detained accused
no.1 at about 12:00 midnight. He testified that when he a rrested and detained
accused no.1, it was in connection with the firearm that was recovered in his
possession. Thereafter he handed him over , together with the firearm to warrant
officer Qokoyi who was investigating the Tsolo robbery. He testified that the sling
bag was hanging on the accused who was seated on a couch. He personally
removed the sling bag from accused no.1 , opened it in front of him and found the
firearm as well as a wallet, drivers licence, his identity document, some money and
bank cards. He denied that accused no.1 was subjected to physical abuse during
his arrest. The firearm had a magazine with 12 rounds of ammunition.

[10] The next State witness was Simon Mathebe. His evidence was that in February
2016 he was a branch manager of Fidelity Security Services (Fidelity) in Mthatha
where he managed the daily activities of cas h in transit operations. He testified that
the company owns several firearms like 9mm pistol, shotguns and rifles. All their
firearms have an identification chip embedded in each firearm. The chips assist in
their weekly stock -taking. On 29 February 2016 at about 11:00 he received a call
from warrant officer Mdepa from the Organised Crime Unit ( OCU ). He told him that
they had arrested a certain suspect in Khayelitsha, Cape Town and recovered a
firearm from the said suspect. Warrant officer Mdepa wanted him to come and
check if the said firearm was n ot one of Fidelity’s firearm s. He took their sca nner
and went to the OCU office s and scanned it as its serial number had been filed off.
The scanner confirmed that the s aid firearm was one of Fidelity’ s firearms. Mr
Mathebe explained that when a firearm is implanted with a chip, the scanner will pick
up the chip number. The chip number in respect of this specific firearm
corresponded with the serial number of their firearm which was 3[...]. He also picked
up that the firearm had been robbed in a ca sh in transit robbery in Lusikisiki which
took place on 14 September 2015. That firearm was allocated t o Fikile Mp humelo
and it was a 9mm Arcus pistol. It was silver with a black butt and its serial number
was filed off. The firearm which was previously exhibited in court was shown to Mr
Mathebe and he confirmed that it was the firearm that warrant officer Mdepa showed
him on 29 February 2016. He further confirmed that Mp humel o was on duty on the
R61 to Flagstaff route on 14 September 2015 in which one of their vehicles was
robbed in Lisikisiki on that day.

[11] The State called capta in Maqubel a. He testified that in 2016 he was a warrant
officer in the SAPS and was working under the OCU in Mthatha . His sub -unit was
the serious and violent crimes unit which investigated crimes such as armed
robberies and murders. He was part of the team of de tectives that was tasked with
investigating all these robberies . His evidence was that o n 31 January 2016 he was
in Cape Town together with warrant officers Qokoyi and Mancoba. The lead
investigator was warrant officer Qokoyi who passed on in 2017 in a s hooting
incident . They had received information that some of the suspects they were looking
for were in Cape Town. They proceeded to Cape Town and linked up with officers
from the OCU in Cape town and members attached to the NIU. Based on the
information they had , they went to Ilitha Park , Khayalitsha T ownship in Cape Town
together with members of the NIU from Cape Town. They were there to arrest
accused no.1. The time was about 21 :00 to 22:00 at night when they went there.
Constables Van Wyk and Nobanda from the NIU entered the house first and found
accused no.1 present with other people . Constable Van Wyk searched him and
found a firearm in a sling bag that was hanging on his body and arrested him . The
firearm was a 9mm pistol which was silver in colour with a black butt. Its serial
number was erased. The following day, they drove with accused no.1 and 5 who
had also been arrested to Mthatha and to ok the said firearm with them.

[12] Mr Keeling testified that in November 2015 he was employed by Fidelity . His job
included going to crime scenes where they would go through crime scenes,
download ing video footages and circulating firearms , if firearms were stolen. He
worked closely with various police stations in the Western Cape. On 19 November
2015 he was called by sergeant September to go to Elsies River SAPS where four
firearms had been recovered. On arrival there he was taken to where firearms
recovered from crime scenes were kept. He immediately noticed two firearms that
were normally carried by Fide lity personnel. One of those firearms was an LM5 rifle
and the second one was an Arcus 9mm pistol . Every Fidelity firearm nationally has
an individual chip embedded in it. The chips are used as a stock count tool. Each
chip has a unique number linked t o Fidelity’s Firearm Management System (FAM).
All the details of all the firearms are kept through that system . They have scanner s
that are used to scan firearm s and identify them . Through the FAM , they are able to
tell which firearm is missing or not a ccounted for. When a firearm is scanned , the
chip will reveal certain digits which are entered on the FAM. The FAM system will
give details of the type of the firearm, its licence, to wh ich branch it belongs and to
whom it was booked out.

[13] He had taken a Fidelity scanner with him when he went to Elsies River Poli ce
Station. He scanned the LM5 rifle and the scanner picked up a serial number from
the embedded chip. The FAM serial number for the LM5 rifle was 7[...]. He took the
said s erial number and went back to his office where he entered it into the FAM
system. The system indicated that the said serial number belonged to the LM5 rifle
he had scanned. The system indicated that that firearm was robbed in 2015 and it
reflected the se rial number of that particular firearm, the case number under which it
was reported robbed and the police area. The system reflected that it was robbed
from Fidelity guards on 14 September 2015 at about 15:30 on the R61 road between
Lusikisiki and Port St Johns. Its serial number which had been erased was G[...] .

[14] In respect of the 9mm Arcus pistol , he found that its serial number had also
been erased . He used a scanner which revealed its FAM chip number. Similarly , he
took the details of its chip number and went back to his offices where he entered it
on the FAM system. The system revealed that it was robbed during an attempted
cash in transit robbery from Fidelity guards where one of them died. Its chip serial
number was 7[...]. When he entered the chip serial number in the FA M system , it
revealed that the serial number of that firearm was 3[...]. It revealed that it was
stolen during an attempted cash in transit robbery on 4 November 2015 during the
Tsolo robbery where one F idelity security guard was shot and kille d and two others
were wounded.

[15] The State called Mp umezi Mlenga. His evidence was that during November
2015 he was working for Fidelity. His duties were to collect money from clients like
banks and to load the auto teller machines (ATM) with cash in Lusikisiki. On 2
November 2015 he was on duty. His du ties on that day were to take money in a
cash vehicle to Nedbank which he was going to load the into a Nedbank ATM. He
was with Mr Vapi who was the driver. They finished their duties in Lusikisiki after six.
They were using a bakkie branded as Fidelity Cash Solutions. On their way from
Lusikisiki to Mthatha and when they were at Ntlaza they had to take a detour
because the road was under construction. The detour took them to a hillock and the
road went past Ntlaza Hospital. On top of the hillock he no ticed a VW Golf 7 which
had no registration plate. It had its hazards on and was being driven slowly in front
of their vehicle. He then heard gunshot sounds from behind their vehicle. When he
looked in the rear view mirror he saw a Toyota Fortuner vehic le behind their vehicle.
He noticed a man in that vehicle shooting the tyres of his vehicle with a rifle. He
heard his driver groaning with pains. He saw other people on the right hand side of
the hillock also shooting. He saw four men alighting from t he Golf 7 vehicle and
shooting on the wind screen of their vehicle with rifles. He told the driver to drive on
as they were being shot from the front and back.

[16] They drove down the hillock approaching the St Barnabas Hospital entrance.
Their vehic le was losing power as they were approaching the hospital. He was
calling his control room and the police to report that they were being robbed. His
driver drove into the hospital until they reached the last building inside the hospital.
The Golf 7 and Fortuner vehicles were chasing them from behind firing shots at their
vehicle. The vehicle could not move anymore and there were men who were firing at
them. One of the assailants stood next to a tree and shot at their vehicle with a rifle
hitting the wi ndscreen and also the passenger door. One bullet penetrated the
passenger door hitting him on his body as a result of which his spine and left leg
could not move. When he later received treatment at hospital it transpired that a
bullet was lodged in his left buttock. The assailants fired bullets targeting the fuel
tank and at some stage he noticed the Fortuner reversing and driving away. He was
later treated at Bedford Hospital in Mthatha. No money was taken from their vehicle
as the assailants were no t able to open the v ault.

[17] The State then called Bongi le Mjungula. His evidence was that in September
2015 he was on duty with Fikile Phumelo (Phumelo) and Gqweta. Phumelo’s duties
were to collect the cash from clients and Gqweta was a driver. They were doing the
Port St Johns, Lusikisiki to Flagstaff rout e. They made a collection in Port St Johns,
then proceeded to Lusikisiki and the last collection was done in Flagstaff after which
they we re on their way back to Mthatha. All the money they collected was placed in
the vault in the vehicle. They finished in Flagstaff at about 16:20 and left for
Mthatha. He was sitting in the passenger seat while Gqweta was driving. Gqweta
called Phumelo to come and join them in front as he was sitting at the back. He
testified that they drove past Lusikisiki and at the Ntafufu curves Gqweta indicated
that he wanted to attend to the call of nature. Gqweta stopped the vehicle saying he
was looking for a toilet paper, Mjungula felt a cramp on his leg and alighted.
Mjungula closed his passenger door and then saw a Corolla vehicle appearing in
front of them and a person pointing a firearm at him came moving very fast. Another
person appeared behind him and pushed him as a result of which he fell. He was
dragged and taken to the Corolla vehicle. He was ordered to get insi de the vehicle
and he set at back seat . Phumelo was put inside the boot of that vehicle which then
pulled off. When they were near Port St Johns, the man who was sea ted next to him
alighted and instruct ed him to run into the forest and no t to look at him. He ran into
the forest and lay on his stomach in the forest. After about five minutes or so he
heard some noise and it transpired that it was Phumelo. They both went to the tar
road and looked for a hike that would take them to Port St Johns. They got a hike to
Port St Johns and alighted at a bridge in Port St Johns after seeing a police vehicle.
He told the police that they had been robbed by a white Corolla vehicle. They waited
there for about two hours. While they waited there, a taxi arrived from which Gqweta
alighted and they were taken back to where the Fidelity vehicle was. Phumelo and
Gqweta opened the vault in the vehicle and found that the money they had collected
was not there, only a bag with coins was left there. On th eir arrival at their office
they were told that the money they had collected which had been robbed was R2.5
million. Mjungula testified that Phumelo was armed with a n Arcus 9mm pistol and he
was armed with on LM5 rifle while Gqweta was not armed on that d ay. The serial
number of the LM5 rifle was G[...] and it had two magazines. He had left it between
the seats when he alighted where they had stopped before the assailants arrived.
He testified that he could not identify any of the assailants.

[18] The next witness was Kwanele Vapi (Vapi). He testified that in November 2015,
he was employed by Fidelity as a technical support officer. This job entailed
inspecting the cash conveying vehicles before they departed. On the 2 November
2015 he was assigned as a driver of a vehicle that was going to load Nedbank ATMs
with cash in Mthatha , Libode, Ntlaza and Lusikisiki. His crewman was Mlenga. The
last ATM to be loaded was in Lusikisiki after which they headed back to Mthatha
using the R61 route via Port St Johns. When they were in the Ntlaza area they had
to take a detour to the gravel road because the road was under construction. As he
took the detour there was a Golf vehicle in front of them with its hazard lights on. It
was facing the Port St Johns dir ection with its bonnet opened as if it had a
mechanical problem. That vehicle was blocking the road and he flickered his vehicle
lights so that it could open the way for him. Five men alighted and he heard the
sound of a machine gun. When he looked behi nd he saw a Toyota Fortuner and
other men emerged from the side of the road and fired shots at them. He was struck
by one of the bullets. He was bleeding but he drove off and they decided to drive
into St Barnabas Hospital which was about 500 metres from the point of the
shooting. While inside the hospital he heard further gunfire and drove inside the
hospital premises and the Forturner was chasing them until they reached the end.
The assailants alighted and continued shooting at their vehicle while the y were
inside it. He testified that the vehicle they were driving was the same vehicle that
had recently been robbed in Lusikisiki when it was driven by Gqweta. Their vehicle
was shot at until Mlenga was struck by a bullet. At some stage after heavy gun fire
with rifles, the assailants left. The y got out and the assailants were gone with a
dummy CPC which was a cash box was missing. They went to look for help at St
Barnabas Hospital and ultimately at Nelson Mandela Hospital. Vapi was taken
through a cr ime scene photo album compiled by warrant officer Vutu from LCRC.
He confirmed that the vehicle depicted in one of the photos with registration letters
and numbers C[...] was the vehicle they were using on the day of the St Barnabas
Hospital robbery whi ch took place inside the hospital.

[19] The State called Vuyisile Mandoyi (Mandoyi). He testified that in November
2015 he was employed at Fidelity. On 4 November 2015 he was on duty and his job
was to protect the person who was carrying cash which was Mnikelo Nqeto on that
day. Nqeto was also a Fidelity employee. They were assigned to fetch cash from
business es as in Qumbu, Ntabankulu, Mount Ayliff and Mount Frere. It was himself,
Nqeto and (Zola Mphako) Mphako. They were using a branded Fidelity vehicle.
Their last collection point was Mount Ayliff between 17:00 and 18:00 in the afternoon
after which they le ft coming back to their offices in Mthatha using the N2 route.
When they were crossing Tsitsa Bridge near Tsolo , Mphako indicated that they were
being shot at. He then noticed a white Toyota Fortuner on the right hand side of the
road firing at their v ehicle. Mphako was the driver and Nqeto was on the left while
he was sitting in the middle. Just in front of their vehicle there was a white Hyundai
vehicle which was a pick -up truck with two occupants. When he first noticed it , it
was at a bus stop dri ving very slowly as it entered the main road. Mphako moved
their v ehicle towards the lane of the o ncoming traffic and he realized that their
vehicle was losing power. The Hyndai vehicle reversed and stopped in front of their
vehicle. Two men alighted fr om it carrying a five litre petrol container and a rifle.
They instructed them to alight. Nqeto opened the door and ran crossing the road.
He followed him but leaned against the vehicle. The driver also alighted. Nqeto was
shot and he fell across the road. Three young men came to him and told him to
open the vehicle . Mphako had been shot and he fell on the road. When he tried to
open the second door, he could not do so as it required their office to be contacted to
get a code with which to open that door.

[20] The assailants asked him who would normally call the office and ask for the
code. He told them that it was Mphako. They fetched Mphako from where he was
lying on the road. He realized that he had been shot in the leg. Mphako came and
they instructed him to contact their office and ask for the code. The office gave them
a wrong code which could not open the vault. At some point he noticed that the
assailants were no longer there having apparently given up and left. The Fortuner
had stoppe d behind their vehicle with its lights on. He could only describe one of the
assailants who shot him as being light complexion. He was later taken to Dr Malizo
Mpehle Hospital in Tsolo for treatment where he was admitted for three months.
Mandoyi testif ied that on that day he was armed with a rifle and Nqeto was armed
with an Arcus 9mm pistol with serial number 3[...]. His rifle and Nqeto’s pistol were
taken by the assailants

[21] The State called Zola Mphako to testify. He testified that in Novem ber 2015 he
worked at Fidelity in Mthatha. On the 4 November 2015 he was assigned the duties
of a driver. His colleagues were Nqeto and Mandoyi. They were collecting cash
from Qumbu, Mount Frere, Ntabankulu and Mount Ayliff including ATMs. Their last
collection poin t was Mount Ayliff after which they drove back to Mthatha using the N2
route. As they were approaching Tsita Bridge he heard the sound of gunfire. He
checked his rear view mirror and saw a white Fortuner behind their vehicle. The
people in the Fortuner were shooting at them. After crossing the Tsitsa Bridge they
noticed a mini truck blocking their path. His vehicle was losing power and he had
also been struck by a bullet on the waist. The assailants alighted instructing them to
get out. They were carrying a five litre petrol container and said if they did not alight
they were going to burn their vehicle. They got out of their vehicle and at that time
their vehicle was standing across the road blocking traffic. The assailants demanded
firearms and even assaulted him with a rifle. After the incident they were taken to
hospital in Tsolo and he was later transferred to Mthatha. He was later told that
Nqeto had died.

[22] The State called warrant officer Vutu. He testified that he worked at the LCRC
in Mthatha in November 2015 as a photographer. On 2 November 2015 he attended
a crime scene at St Barnabas Hospital where a Fidelity vehicle was attacked. He
picked up some empty cartridges which were later sent for ballistic testing. On 4
November 2015 he was called to attend a crime scene in Tsolo on the N2 near
Tsitsa Bridge. He picked up live rounds of ammunition and 27 cartridge cases.
Inside the mini truck he found a bag with a small firearm and a magazine of a rifle.
He also found a deceased person wearing a Fidelity uniform with a wound on the
back of the head.

[23] The next State witness was sergeant September. He testified that in November
2015 he was attached to the Provincial Detective Unit where they investigated
firearms. He was based in Cape Town. He investigated the Elsies River incident
and he attended to that crime scene. Four firearms were found and t wo suspects
were arrested being accused no.2 and accused no.3. The firearms that were
recovered were an Arcus 9mm pis tol with 16 rounds of ammunition which was found
in accused no.2’s possession. Another pistol was found in accused no.3’s
possession. An LM5 rifle was found in a white Golf vehicle. A few days later he
received a call from Mr Rooi from Fidelity who told him that Fidelity firearms were
embedded with chips so that even if the serial number is erased, they are able to
identify it through a scanner. Mr Rooi scanned the firearms that were found at Elsies
River and established that the 9mm Arcus pistol was ro bbed on 14 September 2015
in Lusikisiki. The LM5 rifle was robbed on 4 November 2015 in Tsolo.

Anele Gqweta’s evidence.

[24] One of the witne sses for the State was Anele Gqweta (Gqweta) a witness who
was called by the State in terms of section 204 of the CPA. Gqweta’s evidence was
that in 2013 he was employed by Pr otea Coin Security Services whi ch was based at
Black Heath in Cape Town. He was employed as a driver and he would be
conveying cash. In 2015 he was under the employ of Fidelity which took over Protea
Coin Security Services. He was employed as a driver and he conveyed cash. In
2015 he was based in Mthatha after asking to be transfer red from Cape Town to
Mthatha and the transfer took place in March 2014. Gqweta testified that from 2008
to 2010 he worked for SBV Security Services (SBV) and had some friends at SBV
one of whom was Ntshongwana. One weekend around May 2013 he visited
Ntshongwana in Philippi, Cape Town. Ntshongwana also worked for SBV in 2013.
Ntshongwana suggested that they should visit accused no.1 in Philippi and hang out
with him because he had a bottle of alcohol and he agreed.

[25] On arrival at accused no.1’s p lace, Ntshongwana was under the impression that
he and accused no.1 knew each other so there were no introductions. The reason
for that was that accused no.1 also worked for SBV as he did. However, they
worked in different branches with accused no.1 bein g based at the Epping branch
while he was based at the Be llville branch. While they were at accused no.1’s place
in Philippi, Ntshongwana showed Gqweta accused no.1’s vehicle which was an Audi
vehicle. Gqwetha got to know that accused no.1 also worked fo r SBV and was
based at the Epping branch during the conversation in which Ntshongwana
mentioned that accused no.1 was a custodian at SBV, Epping. Accused no.1 said
that he started working at SBV as a cleaner before he was employed as a protection
officer. In the afternoon he and Ntshongwana left for Ntshongwana’s place where he
had left his vehicle. He picked up his vehicle and went home to Mfuleni where he
stayed at the time. After that occasion he never visited accused no.1 again but he
would visit Nt shongwana.

[26] Gqweta met accused no.1 again in April or May 2014 when he was already in
Mthatha about a month on two after he got a transfer to Mthatha. They met at an
Engen Garage in Nelson Mandela Drive where he had gone to refuel his work
vehicle an d accused no.1 was coming from inside the shop. Gqweta greeted
accused no.1 and had a chat with him while walking towards his vehicle. Accused
no.1 told him that he had come back from Cape Town and was now based in
Mthatha. Gqweta testified that he noti ced that accused no.1 was driving a different
vehicle to the one he knew and he asked him what he was doing in Mthatha.
Accused no.1 told him that he was involved in some business es. They exchanged
cellphone numbers and parted ways. On that day accused no.1 was driving an
Isuzu double cab with stripes. They never called each other until they met by
chance at Cweba’s place which was about a month after they had met at the Engen
Garage. They had a chat but accused no.1 was in a hurry exiting Cweba’s plac e
and walking towards a red BMW vehicle. When he noticed the vehicle accused no.1
was driving , he asked him how he did it as he was always driving different vehicles.
He asked accused no.1 to introduce him to what he was doing and accused no.1
said that he was in a hurry and that they would talk some other time and they parted
ways.

[27] A week or two later, Gqweta was at Vulindlela Heights in Mthatha where he was
looking for car parts and he met accused no.1 there. They had a chat and accused
no.1 mentioned that he was looking for a bulb and on that occasion accused no.1
was driving a Toyota Hilux single cab vehicle saying he had just bought it from
Gauteng. Gqweta became more interested in how accused no.1 was seemingly
successful and had money. They again exchanged cellphone numbers with accused
no.1 saying he would call him. Within a week or two Gqweta received a call from
accused no.1 and he said he wanted them to meet. They arranged to meet at Cicira.
When accused no.1 arrived at Cicira at a block of flats which was rented by school
children, he went to open the gate for accused no.1 and i nvited him to come inside
one of those flats as it was drizzling. Accused no.1 said that he should get inside his
vehicle as he needed to discuss something with him. This was in September 2015.
Gqweta entered the vehicle and found a person who accused n o.1 introduced as
Notemba and he pointed at accus ed no.2 as being the person who was in accused
no.1’s vehicle on that day. Accused no.2 also introduced himself and said that he
was from Ndibela Location.

[28] After introductions were done accused no.1 told Gqweta that his job was to do
robberies and he wanted money from Fidelity. Gqweta testified that he was shocked
but accused no.1 said that if he agreed to do an inside job with him he would protect
him, be cause he knew attorneys and police officers and nothing would happen to
him. After their discussions Gqweta said that he would consider what accused no.1
was saying. Accused no.2 also participated in that conversation giving him
assurances that nothing w ould happen to him. A few days to about a week later he
got to know that there were vehicles at work that had faulty security systems. A
person would know on a Saturday which vehicle he would be using the following
Monday. Gqweta became aware that he wa s going to use a vehicle that had a faulty
system. He then decided to contact accused no.1 and they arranged to meet at
Brickyard. His colleagues had told him that according to the duty roster he would be
working with Mjungula and P humelo and they were g oing to use vehicle CH93.
When he heard that he would be using that vehicle , he knew that its security system
was faulty. He was also told that he would be working on the Lusikisiki route.

[29] When Gqweta arrived at the Brickyard accused no.1 phoned to say that they
should meet in Fortgale. They arranged to meet at Sasol Garage in Fortgale as he
did not know accused no.1’s place in Fortgale. When they met at Sasol Garage he
followed accused no.1 to a house in Fortgale. Gqweta found accused no.2 also
there together with two ladies and there was a braai and liquor was being consumed.
Gqweta, accused no.1 and accused no.2 had occasion to meet aside. He told
accused no.1 and 2 about the vehicle he would be using the following Monday and
the route that w as allocated to him. He also told them that the security system of
that vehicle was faulty. Therefore, they would be able to open the crew door and get
inside and open the safe door. He also told them that there was a small safe and
also a big safe but because of the faulty system the money would be on the floor of
the main safe. He also told them that his route would start at Ntlaza via Port St
Johns, and Lusikisiki up to Flagstaff. He further told them that when they got to
Flagstaff they would have collected money from all their stops and they would then
return to Mthatha . After he gave them that information, accused no.1 said that he
would phone some men he was working with who were in Cape Town. They
continued drinking and accused no.1 told him t hat the men from Cape Town would
come and would arrive the following Sunday and that they would have to meet on
that Sunday. They then parted ways.

[30] On Sunday accused no.1 told him telephonically that the men from Cape Town
were still on the way. Ac cused no.1 again contacted him and told him that the men
had not yet arrived and he again contacted him saying that they should meet at a
scrapyard in Norwood. Gqweta went to the scrapyard and saw a double cab vehicle
and he parked his vehicle next to it. Accused no.1 also arrived driving his single cab
Toyota Hilux bakkie . They exchanged pleasantries after which they got into the
double cab. Accused no.1 was with accused no.2. They all got into the back seat as
the front passenger seat and the driver’ s seat were occupied. They discussed how
the robbery would be committed and accused no.1 told them that the men from Cape
Town had not yet arrived but would arrive the following morning. There were
discussions about how the Fidelity vehicle would be brou ght to a standstill and how
they would get to where the money would be. Different ideas were exchanged.
Gqweta then said that they do stop to pee on the way and that it would be better that
he bought stoney dr ink and accused no.1 suggested a score energy drink which he
said caused one to pee frequently after drinking it. It was then agreed that Gqweta
would stop the vehicle to pee and that accused no.1 and his men would arrive and
bracket it while the vehicle w as stopping and put him in another vehicle. They would
drive the Fidelity vehicle to a different place and off load the money. He gave a
briefing to accused no.1 who was already familiar with the operations of a cash van.
It was then agreed that Gqweta should not use his normal phone in communicating
with them. He would use another phone to make calls to accused no.1 after the last
pick up in Flagstaff. After that phone call, he would destroy that phone and throw it
away. It was further agreed that ac cused no.1 would meet Gqweta to give him the
cheap phone he would use for the plan. They later met at the Brickyard where
accused no.1 gave him the phone after which they parted ways. Before they parted
ways he also took the number he was going to use in communicating with accused
no.1 which was also different from his normal phone.

[31] On Monday he went to work and took the vehicle that had been allocated to him.
It was a Toyota Hilux single cab armoured vehicle used for cash conveyance. They
were given the firearms that they were going to be armed with as usual. He was
given a small revolver which he declined. The company policy was that when there
was a shortage of firearms, the driver should not be armed. He took that opportunity
to ensure tha t he would not be armed. They departed and their first stop was Total
Garage in Mthatha on the R61 route to Port St Johns where he bought airtime and
the energy drink. He was with P humelo and Mjungula, his colleagues. After buying
airtime at that garage he secretly loaded the phone that was given to him by accused
no.1 with airtime. Their next stop was Ntlaza after which they went to Port St Johns
and from there, they went to Lusikisiki. Incidentally Mjungula indicated at some point
that his stomach wa s upset and he needed to relieve himself. He took that
opportunity to secretly make a call to accused no.1. Accused no.1 reported to him
that the men from Cape Town had arrived and the group would be available when
they finish their last collection of mo ney in Flagstaff. When Gqweta and his
colleagues arrived in Flagstaff P humelo and Mjungula attended to their normal duties
and he used that opportunity to make another call to accused no.1 telling him that
Flagstaff was their last stop after which they wo uld be on their way back to Mthatha.
They would use the R61 route that goes via Port St Johns as they did on their way to
Flagstaff. They used to call each other, “Boy” so in that ca ll he said to accused no.1
“Boy we have finished and we are going to depart for Mthatha”. Accused no.1
reminded him to destroy the phone they used in their communication as that was
their last cellphone call. He destroyed it but he did not get an opportunity to throw it
away, so he put it in his pocket and they left for Mtha tha.

[32] He was the driver and in the passenger seat there was Mjungula and P humelo
was at the back. On the way Mjungula wanted to relieve himself again so they
stopped about 10 km from Flagstaff. It was then that he got an opportunity to throw
away th e phone which he did. P humelo said that he was tired of sitting at the back
of the vehicle and he was going to squeeze himself in front as that vehicle had a
driver’s seat and one passenger seat. They drove past Lusikisiki and between
Lusikisiki town an d Ntafufu Location curves, at some point he told his colleagues that
he wanted to pee. He stopped the vehicle and sat in the vehicle for a moment
checking his rear view mirror to see if they were being followed as his arrangement
with accused no.1 was tha t they were going to follow them and block their vehicle
and take it after he would have stopped. Mjungula said that he wanted to relieve
himself again and he alighted. As Gqweta was alighting a Toyota Corolla bracketed
his vehicle and a tall person carr ying a rifle alighted. This person pointed him with a
firearm and pushed him towards the passenger door. At this time, he did not notice
what actually happened to Phumelo and Mjungula. The rifle carrying man had his
face covered with a black cloth from the mouthstouche to the back and had a beanie
on his head. The only area of his face that was not covered was the area around the
eyes and the nose. This person was swearing and telling him to get out of the car
and had a stutter but he could not identif y this person.

[33] Gqweta fell out on the passenger side of the vehicle and lay on his stomach. He
expected them to take him to another vehicle but they took him back to his vehicle
and he boarded on the passenger side. Accused no.1 entered on the driv er’s side
and another man he could not identify entered on the passenger side and he was in
the middle of accused no.1 and the second man. Before accused no.1 drove off
another man entered and he also could not identify him. He was able to identify
accus ed no.1 because he was known to him and he also spoke saying “Boy
everything is going to be fine and you should not worry”. Accused no.1 drove for a
short distance into a gravel road and at this stage he had already been cuffed with
cable ties. After a f ew minutes’ drive on the dirt road the vehicle stopped and these
men alighted. Accused no.1 also alighted and tried to open the vehicle as he had
told him how to open it but was unsuccessful and he, Gqweta had to open it as well
as the safe at the back wh ile pointed with a pistol. He was forced into the Fidelity
vehicle. He noticed the presence of the white Toyota Fortuner and the white Toyota
Corolla vehicles. He cut off the cable ties by rubbing them against the edges inside
the vehicle until they bro ke. He then ran to the tar road and got into a taxi that was
off-loading passengers and told the taxi driver that they had been robbed. He asked
the taxi driver to take him to the police station. He called his boss Mr Binda and
reported to him that they had been robbed. Mr Binda told him that he was already
aware and that P humelo and Mjungula had been found. He asked the taxi driver to
take him to Mzimvubu Bridge where he found them with another colleague, Zibi and
some police officers. He took them back to the vehicle where they found that the
money had been taken. After the police had taken their statements and processed
the crime scene they came back to Mthatha.

[34] On the third day after the incident, they wer e taken for a polygraph test at work
which he was later told he had failed. This incident occurred on the 14 September
2015 and the following day, he phoned accused no.1 but he could not get hold of
him until the third day when he called him again. Gqwet a told accused no.1 that
there was a rumour at work that an investigator was going to take them through the
route and stop at all the places they had stopped. He also told him that he had
thrown the cheap phone in one of those stops. The following day he and accused
no.1 met and went back on that route to retrieve that phone. They found it and
accused no.1 took it and damaged it himself and threw its pieces along the way as
they were driving back. Accused no.1 told him that he would get R300 000.00. He
and accused no.1 met again and he told accused no.1 that his vehicle was in Corana
for repairs. In the afternoon of that day accused no.1 phoned Gqweta and they
agreed to meet in Ngangelizwe township near a place called Sibaya. They met and
accused no.1 gave him a bag saying here are your things. He took that bag and
threw it in his vehicle and even before he could ask, accused no.1 said that it had
around R300 000.00. He did not count it at that stage and they parted ways. After
accused no.1 left, he opened the bag and saw that indeed it had money, took some
of it and hid the bag under his seat. He went to his rural home, took a spade and
dug a hole at a certain graveyard and hid the money there.

[35] About a week thereafter Gqweta received a call f rom accused no.1 and they
arranged to meet next to Ultra City in Mthatha. They met and accused no.1 asked
him to lend him R20 000.00 saying he was running short of funds for building
material. Gqweta later went to dig out the money, took it home and coun ted the
R20 000.00 that accused no.1 asked for. The following day they met at Ultra City
again and he gave him the money. He told accused no.1 that he was going to
Jimmy’s workshop in Corana to have his car repaired. Later that afternoon accused
no.1 ca me to Jimmy’s workshop and found him there. It transpired that there were
many things that needed repairs in his vehicle. Accused no.1 arrived at Jimmy’s
workshop and they left together to town where he bought a bottle of brandy for
accused no.1 and they came back to Jimmy’s workshop. They were consuming that
bottle of brandy while Jimmy was busy attending to his car. As they were chatting
accused no.1 had a sling bag hanging on him and he opened it and showed him a
firearm. Gqweta testified that the s aid firearm looked similar to the one that
Phumelo , had on the day of the robbery. Accused no.1 told him that he got it during
the Lusikisiki robbery. The firearm P humelo carried on that day was still knew with a
rubberised handle. Gqweta was shown the firearm which was exhibited in court and
marked exhibit 1. It was exhibited by constable Van Wyk who had previously
testified that he had recovered it in Cape Town from accused no.1 at a house in Ilitha
Park, Khayelitsha, Cape Town when accused no.1 was a rrested. Gqweta testified
that exhibit 1 looked exactly the same as the firearm that accused no.1 showed him.
He further testified that it looked the same as the firearm that was in possession of
Phumelo on the day of the Lusikisiki robbery and it was no t different from the
firearm s that belonged to Fidelity.

[36] With regard to the R20 000.00 loan, accused no.1 had promised him that he
would repay it after another job which he understood to be another robbery. A few
days after they had met at Jimmy’s w orkshop around late October or early
November in 2015 Gqweta testified that he was coming from Cape Town when he
was approached by accused no.1 at a car wash in Fortgale. Accused no.1 asked for
another loan saying that he wanted to buy rounds of ammunitio n which he
understood were going to be used in another robbery. Accused no.1 said that he
would repay him after he would have received his share from the next job. Gqweta
had with him R30 000.00 from which he lent accused no.1 R10 000.00 and they
parted ways. He later received a call from accused no.1 about 17:00 on the same
day. Accused no.1 said he was following a Fidelity vehicle from the Tsolo direction
on the N2 and he wanted information about that vehicle. He told accused no.1 that
after the Lusi kisiki robbery their vehicles systems at Fidelity were fixed and there
was no way of opening it without making a phone call to the office and getting a
code. Accused no.1 thought that he was hiding information from him and he then
promised him a share but he did not have any information.

[37] The following day he received a call from a friend of his asking him if he had
heard that a Toyota Fortuner had robbed another Fidelity vehicle in Tsolo. He later
learnt from news on the radio that there was a cash in transit robbery near Tsolo in
which one guard was fatally wounded. Gqweta testified that he panicked because
accused no.1 had told him that they were following a Fidelity vehicle the previous
day. He decided to leave for East London where he stayed at a bed and breakfast
establishment until a few days later when he received a call from accused no.1.
Accused no.1 said that he had taken his BMW vehicle to East London for service
and asked him to pick him up. He picked him up and they went to a place ca lled
Ebuhlanti in the Eastern Beach. They enjoyed themselves there and when accused
no.1 needed to pick up his vehicle he said he was short of R700.00 to pay for the
service and he gave him that money. They parted ways and Gqweta remained in
East London. While they were at Ebuhlanti accused no.1 told him about the Tsolo
robbery saying that they managed to bracket the vehicle they were following from
Tsolo and the guards received the code from Fidelity office but they were unable to
open the vehicle and t hey did not get the money.

[38] While he was still in East London Gqweta received another call from accused
no.1 giving him directions to King Williams Town towards Peddie to a place called
Bulembu where there was a ceremony and some liquor was being served. On
arrival there he found accused no.1 and accused no.2 and another person who was
introduced to him as Biza. Swanki and Magaiks we re also there and were
introduc ed to him. Gqweta pointed to accused no.3 as the person who was called
Magaiks whom he saw for the first time there. He also pointed at accused no.6 as
the person who was introduc ed to him as Swanki and he was also meeting him for
the first time on that day. They parted ways later that day. At some stage in late
November or early December 2015 he met accused no.1 in Vi egesville who told him
that some of the men had been arrested in Cape Town in possession of the firearms
that were robbed during the Lusikisiki robbery. Accused no.1 suggested that they
should run away. He went to sleep at his mother’s house. Later that night between
22:00 and 23:00 accused no.1 called him again saying that police had arrived at his
home and that they should run away. He then fled to Pretoria. Sometime in 2016
police arrested him at his home having come back from Pretoria.

[39] Under cross -examination Gqweta testified that he was arrested towards the end
of 2016. After his arrest by members of the DPCI he told the police what happened
and was told to return the following day for the taking of his statement. He went
home and returned to the offices of the DPCI the following day. It transpired during
his cross -examination that he made what counsel for accused no.1 referred to as a
confession statement taken on 24 November 2016 and that in 2017 he was told that
he would testify for the State as a section 204 witness. Gqweta maintained that at
some stage he and accused no.1 worked for different branches of the same
company, SBV in Cape Town between 2008 and 2010. When it was put to him that
accused no.1 worked for SBV from 2011 to 2014, Gqweta testified that accused no.1
had said to him that he started working for SBV as a cleaner and was later
transferred to trucks. He further confirmed that they first met in 2013 when he
arrived at his home with Ntshongwana and it was during that enco unter that he
realized that accused no.1 was also working for SBV. He also confirmed that he
later learned from accused no.1 that during the Tsolo robbery, one of his colleagues
(Nqeto) was killed and he felt guilty about the death of his close colleague when
accused no.1 told him that he was present during the Tsolo robbery. Gqweta
confirmed his evidence in chief in respect of everything that was put to him on behalf
of accused no.1. He also confirmed that upon being arrested he told the police the
truth about his involvement in these offences. He explained that he was tired of
being on the run from the police and that accused no.1 and 2 who had promised to
protect him had themselves been arrested and in all of this he was surviving or
getting by on sle eping tablets.

[40] The State then indicated its intention to lead evidence of statements obtained
from the accused on the basis that such statements complied with the provisions o f
section 217 of the CPA. The S tate submitted that those statements , were given by
the accused freely and voluntarily who , at the time they made their statements were
in their sound and sober senses and therefore the statements amounted to
confessions. The legal representatives for the accused objected to the admission of
those statements on the basis that the accused were tortured and coerced into
making the statements with police saying that they received a statement from one
Simphiwe Nomandel a, accused no.4 and Anele Gqwet a. The acc used said they
were confronted with s tatements from these individuals . However, accused no.4 had
since passed on. Anele Gqwet a had testified as a section 204 witness. It was
submitted on behalf of accused no.1 that he was tortured by being suffocated and
lost consciousness a number of time s. He therefore made the statements under
such circumstances which therefore did not comply with section 217 of the CPA in
that his statement was not freely and voluntarily made . He was also told what to say
to the commissioned officer based on the infor mation the police received from
Nomandela, accused no.4 and Gqwet a.

[41] On behalf of accused no.5 , the objection was that his statement was made two
days afte r his arrest and on the day of his arrest he was shot on the leg by the
police. He was still in pain with his gunshot wound still new. He was not in his
sound and sober senses as he was taking pain tablets to ease the pain. When he
was taken to the comm issioned officer , he told him that he did not want to make a
statement as he had indicated in his warning statement that he would make it in
court. The commissioned officer threatened to call the in vestigating officer s, warrant
officer Qokoyi and captain Maqubela. Because of the fear of further torture, he
decided to make the statement to the commissioned officer. The court granted the
State’s application for a trial –within –a trial to be opened to determine the
admissibility of the said statements.

[42] The State called sergeant Nkankula who testified that in February 2016 he was
attached to the DPC I in Mthatha. He was not part of the team that investigated the
Tsolo robbery . On 3 February 2016 he had only been a member of the DPC I for two
days. On t hat day he was asked by warrant officer Qokoyi to take accused no.5 to
PRD building to major Mtirara . He was not part of the police officers that questioned
accused no.5 before he went to make a statement to major Mtirara. It was at about
19:30 and he wa s accompanied by his colleague Sikwatsha. When he met accused
no.5, he had no visible injury but he was limping. They arrived at major Mtirara’s
office at about 19:43 and he told him that he was there to bring accused no.5. Major
Mtirara asked for his d etails, wrote the m on a piece of paper including his cellphone
number saying he would call him when he was finished with the suspect. He was
later called by major Mtirara to fetch accused no.5 at about 21:00. He went to fetch
him still accompanied by Sikwatsha. Major Mtirara handed to him accused no.5 and
a big envelope telling him to give it to warrant officer Qokoyi. When he found
accused no.5 when he fetched him , he was still in the same condition as he had left
him with major Mtira ra. He handed accused no.5 to warrant officer Qokoyi . He
denied being told by accused no.5 that he was in pain or that he asked for water to
take pills. He denied being present with the accused and major Mtirara when the
statement was taken. When the s tatement was finished he took accused no.5
straight back to the DPCI offices to warrant officer Qokoyi. He denied taking the
accused no.5 to Madeira Police Station or to any other police station.

[43] The next State witness was colonel Mtirara. His evidence was that in February
2016 he was hold ing the position of a major in the SAPS and was attached to the
Stock Theft Unit . His office was on the 14th floor at PRD building in Mthatha. On 3
February 2016 in the afternoon , he received a call from warrant officer Qokoyi from
the DPCI asking him to take a confession from a suspect. He told warrant officer
Qokoyi that the person may be brought to him at about 19:30 that evening because
he was still busy with his administrative duties. Warrant officer Qokoyi did not tell
him the details of the case he was investigating or the names of the suspect. At
19:30 a person who introduced himself as Lundi Gumenge which is accused no.5
was brought to his office by constable Nkankula. After preliminary introductions , he
asked constable Nkankula to give him the keys for the leg irons as accused no.5 was
in leg irons and to give him his contact details so that he could phone him to fetch
him after taking the confessi on. Thereafter constable Nkankula left him alone with
accused no.5 in the office. He had a pro –forma confession form in his office. He
took it and completed the questionnaire with all the details that the form required with
the information that accused no.5 provided . Before taking the statement that form
required him to explain to accused no.5 all the constitutional rights that are detailed
in it wh ich he took time explaining them. When he was satisfied that the suspect’s
rights provided for in section 35 of the Constitution all of which are enumerated in the
pro-forma were not violated and was not forced to make the confession , he went
ahead and ga ve accused no.5 the opportunity to tell him what he wanted to tell him.

[44] Accused no.5 told him that he was arrested in Cape Town on 31 January 201 6.
He told him that he was shot by the police during the arrest. He then asked him to
undre ss so that he could see his woun d which was on the right thigh. Accused no.5
answered all the questions that the form required him to answer and signed the form
on each page. Under cross -examination he denied that accused no.5 asked for
water in order to take his pills for the pains in the gunshot wound. He testified that
he conducted the interview with accused no.5 while he was in leg irons. This was
necessary to avoid the risk of the suspect running away or even jumping to his death
as PRD building is a tall building. He testified that if accused no.5 had indicated that
he did not want to make the statement he would have told constable Nkankula to
take him bac k. He denied that accused no.5 told him that he was not in his sober
senses because of the pain tablets he was taking for the gun shot woun d or that he
was di zzy. He testified that accused no.5 did not have any tablets with him and he
did not show him any tablets or ask to take them for pain.

[45] The next witness was brigadier Manyana. He testified that he was a colonel in
February 2016. He was based at PRD building in Mthatha and was attached to
Crime I ntelligence Unit. He was not part of the investigatin g team. He received a
call from colonel Mdingi who was the head of th e DPCI in Mthatha. Colonel Mdingi
asked him to assist him by taking a statement from a person he said was in his
offices. He proceeded to colonel Mdingi’s offices which were less than a kilometre
away from his offices. He arrived at about 18:00 and colonel Mdingi gave him a n
office and indicated that the suspect would be brought to him. At about 18:10
sergeant K utu brou ght accused no.1 to him. When c olonel Mdingi allocated him an
office he also provided him with some blank pro -forma confession forms th at he
would need to use in taking the statement. When he was brought to him , accused
no.1 was in handcuffs. Brigadier Manyana asked sergeant K utu to remove the
handcuffs after which accused no.1 sat on a chair in front of his table. F ollowing the
pro-forma form which is in the form of a questionnaire , he interviewed accused no.1.
He completed the responses that accused no.1 gave to him and aft er satisfying
himself that accused no.1 voluntarily wanted to make the statement, he had not been
assaulted or in any way tortured or pressured into making the statement he went
ahead and took a statement from accused no.1.

[46] Under cross -examination he testified that accused no.1 never told him that he
had been tortured by the police before he was brought to him to force him to make a
statement incriminating himself. He denied telling accused no.1 that if he did not
make the statement he would send him back to the police that had tortured him in
the first place. He denied that accused no.1 was not in his sound and sober senses
when he interviewed him due to the tra uma of being assaulted. He denied that when
accused no.1 was brought to him he was on le g irons. He further disputed accused
no.1’s version that when he arrived , he had been handcuffed to the back and he only
instructed sergeant K utu to handcuff him to the front. He explained that he told
sergeant Kutu to uncuff accused no.1 because h e wanted him to be free and rel axed
and not be under any form of pressure.

[47] The next State witness was sergeant Kutu. He testified that i n Febr uary 2016
he was attached to the OCU and started in that unit on 1 February 2016. He was not
part of the team that was investigating th e case and was not aware of the facts of
this matter at the time. On 3 February 2016 he took accused no.1 for confessio n at
the request of warrant officer Mancoba. It was after 18:00 when he was asked by
warrant officer Mancoba to take accused no.1 for a confession. He fetched accused
no.1 from the parade room in their offices. He was shown accused no.1 by warrant
officer Qokoyi whom he also found with the accused in the parade room. He took
accused no.1 to a n office where brigadier Manyana was , in the same building. On
their arrival brigadier Manyana told him to uncuff accused no.1 and ask ed him for his
rank and his surname. After that brigadier Manyana excused him saying he would
call him when he finished with accu sed no.1. Accused no.1 was not ill -treated in his
presence. Brigadier Manyana called him from the passage as the offices are not far
apart. It was put to him that it was warrant officers Qokoyi and Mancoba who took
accused no.1 to brigadier Manyana whic h he disputed.

[48] The next State witness was captain Maqubela a member of the OCU. His
evidence was that he was part of the team that was investigating this case under the
leadership of the late warrant officer Qokoyi. He was present when accused no.1
was arrested in Khayelitsha, Cape Town on 31 January 2016. He was then detained
in Mthatha on 01 F ebruary 2016 at Central Police Station. When accused no.1 was
interviewed , he admitted his involvement in this case. The interview took place in
the afternoon on 3 February 2016 at the OCU office s in Mthatha. The interview was
conducted by warrant offic er Qokoyi and he and warrant officer Mancoba were
present . The interview was conducted in a hall in their premises. Accused no.1 was
in handcuffs which were tie d to the front and he was also o n leg irons. Accused no.1
admitted having knowledge of these offences. W arrant officer Qokoyi then
organised brigadier Manyana and accused no.1 was later taken to him for a
statement. After the state ment was taken , accused no.1 was brought back and then
taken for detention. At the time of the interview of accused no.1 , accused no.5 was
also present but in a different office in the same building. The interview of accused
no.1 took about 30 minutes or a little bit more than that in which he basically
admi tted having knowledge of the offences.

[49] The next person to be interviewed was accused no.5. During the interview of
accused no.5 it became clear that he was admitting being involved in the
commission of these offences as a result of which a commissioned officer was
arranged to take his confession. His interview also took about 30 minutes or so.
Interviews were being led by warrant officer Qokoyi but he also participated by
asking questions as well. Under cross -examination , he testified that on the day of
the interviews the accused appeared in court in Tsolo. He denied that accused no.1
was tortured in any way including being suffocated with a duvet cover that was
wrapped u p in a plastic during his arrest in Cape Town as he alleged . It was further
put to captain Maqubela that in the morning accused no.1 had indicated to warrant
officer Qokoyi that he would make a statement before a magistrate when he made
the warning statem ent. After the warning statement was taken , the accused were
taken to court. After the court appearances the accused were taken to their offices
for further questioning . After the interview accused no.1 was taken to a
commissioned officer to make a state ment in the late afternoon. Captain Maqubela
denied that he was not present during the interview that was conducted by warrant
officer s Qokoyi and Mancoba. It was further put to him that accused no.1 was
confronted with a statement said to have been made by accused no.4 and
Nomandela. Captain Maqubela testified that he could not dispute that because
accused no.4 had already been arrested at the time and they had received
information from accused no.4 and Nomandela. He denied that accused no.1
disputed th e allegations made by Nomandela and accused no.4 and testified that in
fact accused no.1 confirmed what accused no.4 said in his statement.

[50] It was further put to captain Maqubela that accused no.1 agreed to make a
statement before a commissioned officer hoping to disclose what the police did to
him. However, the commissioned officer said he would be taken back to his
interrogators if he did not make a statement. Captain Maqubela denied this version
saying that during the interviews accused no.1 said that he knew about the Tsolo,
Lusikisiki and Ngqeleni rob beries. Thereafter the late warrant officer Qokoyi
arranged for a commissioned officer for accused no.1 to make a statement . Captain
Maqubela denied that accused no.1 was taken by warrant officers Qokoyi and
Mancoba to the commissioned officer.

[51] Under cross -examination by the attorney of accused no.5 captain Maqubela
testified that accused no.5’s interview also took place on 3 February 2016 in the
afternoon. He took a warning statement from accused no.5 that morning in which
accused no.5 said that he had no knowledge of the offences and that he would make
a statement in court. The accused were taken to court and the warning statement
was in the docket which was with warrant officer Qokoyi. He did not tell warrant
officer Qokoyi that accused no.5 had said that he would not make a statement. After
the court appearance warrant officer Qokoyi said that the y would have to further
interview the accused as accuse d no.5 had told him that he wanted to say
something.

[52] When they interviewed accused no.5 he disclosed his involvement in the three
robberies and what he said confirmed what accused no.4 had told them. A
commissioned officer was then arranged for ac cused no.5 to make a statement. He
denied that accused no.5 had told them that he was not feeling well and had been
feeling dizzy the whole day due to the tablets he was taking for pains for the gunshot
wound he had sustained during arrest. Captain Maqubela confirmed that accused
no.5 did have an injury in the leg but denied that accused no.5 showed any signs of
dizziness and in fact appeared to be fresh. He denied that he was tortured by
pressing him on his wound. It was further put to captain Maqub ela that accused no.5
reported to the Ngqeleni court during his appearance there the following day that he
had been tortured and an order was made for him to be taken for medical attention.
Captain Maqubela disputed the torture but did not dispute that ac cused no.5 made a
report to court. He denied that accused no.5 was suffocated with a plastic bag,
assaulted or pressed on his wound.

[53] The next State wi tness was warrant officer Mancob a also a member of the OCU
based in Mthatha and part of the team th at investigated this case. He testified that
he became the investigating officer following the killing of warrant officer Qokoyi. He
testified that the accused were transported from Cape Town and detained in
Mthatha. On 3 February 2016 they appeared in court in Tsolo after which they were
brought to their offices. Warrant o fficer Qokoyi indicated that there were issues
about which the accused needed to be questioned. He participated in the interview
but the person who was leading th e team was warrant officer Qokoy i as the
invest igating officer. Warrant officer Qokoyi infor med accused no.1 of his rights .
Accused no.1 said that he did not have a problem, he would narrate what happened
during the robberies . Nothing unlawful was done to accused no.1.

[54] They a lso interviewed accused no.5. H e testified that he was not present when
accused no.5 was arrested in Cape Town. He met accused no.5 on 31 January
2016 when he came from Harare Mini Hospital. Accused no.5 was in hospital
because of a gunshot wound sustained during his arrest. When he saw him , he was
with a police officer from the NIU . Accused no.5 was treated and discharged and
was not given any medication. They noticed that his injury was regarded as minor.
They therefore took him and detained him in Bellville. Accused no.1 and 5 were
arrested on the same day so they booked them out so that they could bring them to
Mthatha. The accused were detained at Central Police Station on arrival in Mthatha.

[55] When accused no.5 was interviewed, he was first informed of his rights by
warrant officer Qokoyi. After hi s rights were explained, accused no.5 was then
asked about his involvement in these cases. He said that he had knowledge about
the cases and that he was prepared to give details which he did. Warrant officer
Qokoyi then asked if he would be willing to tell another person what he told them.
Accused no.5 then said he would be willing to do so to clear his conscience.
Thereafter major Mtirara was arranged by warrant officer Qokoyi to take his
statement .

[56] Under cross -examination on behalf of accused no.1 , warrant officer Mancoba
testified that after the interview accused no.1 made a confession. He explained that
they interviewed accused no. 1 when they did because they wan ted to know about
the cases in wh ich he was alleged to be involved in after which a commissioned
officer was arranged on the same day for the taking of his confession. He testified
that in performing his duties as a member of the tea m that was investigating this
case he wrote some notes in his pocket book. However, he was later involved in a
motor vehicle accident in Viedge sville at some stage during which he lost some of
his belongings. He recorded all his activities in this case in that pocket book
including dates and times. He denie d that he and warrant officer Qokoyi took
accused no.1 to brigadier Manyana and maintained that he was taken by either
sergant Nkankula or constable Kutu. He denied that accused no.1 was confronted
with information they said they obtained from accused no.4. He confirmed that at the
time accused no.1 was arrested accused no.4 had already been arrested. He
however, confirmed that accused no.4 and Noma ndela had given them information
about the case but they did not question accused no.1 about what accused no.4 had
told them. Warrant officer Mancoba said that he was shocked that accused no.1
was saying he had always denied being invo lved in these offenc es as he co -
operated with them and told them everything he knew about this case .

[57] Warrant officer Mancoba denied schooling accused no.1 about what he should
say to the commissioned officer. He said that the interview with accused no.1 took
about 25 to 30 minutes. He denied that accused no.1 was tortured and suffocated
when he refused to incriminate h imself. It was put to him that accused no.1
succumbed to the torture fearing for his life and promised them that he would make
the statement to the commissioned officer. Warrant officer Mancoba denied that any
form of pressure was bro ught to bear on accu sed no.1. I t was further put to him that
when accused no.1 was before the commissioned officer, he told him that he had
been tortured by the police. Warrant officer Mancoba maintained that they did not
torture him and he did not know what accused no.1 said to the commissioned officer
as he was not there. It was further put to warrant officer Mancoba that brigadier
Manyana returned him to warrant officers Mancoba and Qokoyi who tortured him
again at which stage he realized that he might lose his life and then decided to
narrate the events as schooled by the investigat ors. Warrant officer Mancoba
denied all this insisting that accused no.1 was not tortured and everything he said to
them said it freely. He would not comment on what happened before brigadie r
Manyana.

[58] Warrant officer Mancoba was then cross -examined on the warning statement of
accused no.1 in which he said that he would make a statement before a magistrate.
He was then asked if there was any reason for the investigators to ask questions
from accus ed no.1 after he had said that he would make a statement before a
magistrate. Warrant officer Mancoba testified that that be came necessary after the
accused said they wanted to speak after the court appearance with accused no.1
saying he wanted to clear his conscience. It was put to warrant officer Mancoba that
on 4 February 2016 accused no.1 was taken to Ngqeleni magistrates’ court where
accused no.1 reported to the court that he was assaulted and tortured by the police
and requested to be taken to hospital as a result of which a court order for him to be
taken to hospital was issued and indeed he was taken to hospital. Warra nt officer
Mancoba testified that he could not dispute that that is what accused no.1 said to the
court but denied that he had been assaulted. He denied that when police took him to
hospital , they took possession of his medical records which were never re turned to
him. He explained that when a person has been taken to a doctor his hospital card
remain s with him. He further explained that in prison there are doctors and nurses
who attend to inmates. Before they are admitted in prison the nurses would enq uire
about their illnesses so that they would know which medication to give to which
inmate.

[59] Under cross -examination on behalf of accused no.5 warrant officer Mancoba
confirmed that warrant officer Qokoyi had told them that accused no.5 wan ted to
make a confession. It was put to him that when accused no.5 was interrogated he
had already signed a warning statement making it clear that he w ould make a
statement in court. Warrant officer Mancoba responded that warrant officer Qokoyi
approached them saying the accused wanted to make a confession. He denied that
his constitutional rights were not explained to him. He explained that accused no.5
had already appeared in court and his rights were explained in court and so he knew
them. Therefore, they could not have compelled him to make a statement. He
denied that accused no.5 had told them that he was not prepared to be interviewed
as he was feeling dizzy and was in pain. He denied that accused no.5 was in
handc uffs and leg irons during the interview. He testified that accused no.5 was free
and was not handcuffed but was in leg irons but during the interview the leg irons
were removed.

[60] Warrant officer Mancoba denied that accused no.5 was assaulted and
suffocated with a plastic bag when he denied knowledge of the offences. It was put
to warrant officer Mancoba that accused no.5 would testify that he was given a
statement which he must make to the commis sioned officer which he denied. He
denied that accused no.5 was questioned about what accused no.4 had said to the
police. He denied being told by accused no.5 that he was dizzy from allergex and
panado table ts that he was taking saying that he never saw accused no.5 carrying
any tablets . It was further put to warrant officer Mancoba that because he had been
assaulted before making the statement, when accused no.5 appeared in court he
explained his condition to the court as a result of which the court ma de an order that
he should be referred for medical attention and was taken to Nelson Mandela
Hospital. Warrant officer Mancoba said that he had no knowledge of that . Warrant
officer Mancoba denied ever t aking the accused persons to hospital or doctor oth er
than a doctor in Butterworth which was in 2019. He denied that after he was taken
to hospital , accused no.5’s medical records were taken by the poli ce who refused to
return them.

[61] The State called Dr Mbelekane who testified that he had been practi sing as a
doctor for 28 years. He testified that panado is an over the counter analgesic which
means it is a pain killer. He testified that it does not affect a person’s ability to do
daily activities. The allergex is an antihistamine which is used to fight allergic
reactions in a body. It is a prescription medicine. It i s a sedative but rarely causes
dizziness when taken on the prescribed dosages. It could also result in drowsiness if
the prescribed dosages are exceeded and it took five to six hours to be cleared from
the body. After his evidence the Sta te closed its ca se in the trial -within -a-trial.

[62] Accused no.1 testified during the trial -within -a –trial. He said that he did not
make his statement freely and voluntarily. He was arrested in Cape Town on 31
January 2016 at Ilitha Park , Khayelitsha after 21:00. On the night in question he was
in a certain lady’s house there . There were four of them in the house at the time and
the door was not closed. They were three males and one female. While the y were
sitting there in the house, a person carrying a firearm and not wearing uniform
entered telling them to lie down. Five other people also ca me in. As they were lying
down captain Maqubela came and handcuffed him from the ba ck and pulled him
towards a bedroom. When they reached the bedroom captain Maqubela pulled a
plastic cover of a duvet from above the wardrobe. He used it to suffocate him. He
then asked him about his friends. As he was suffocating him he was called by
warrant officer Qokoyi. They were ultimately taken to Pa rrow Police Station at about
midnight . They were not allowed to make calls to their family members. They were
eventually taken to Mthatha and were detained at Central Police Station on 2
February 2016 at about 23:00. The following day the 3 February 2016 he and
accused no.5 were taken by warrant officer Qokoyi and captain Maqubela betwee n
seven and eight that morning to the OC U offices in Mthatha .

[63] When they got there , he was asked if he had anything to say about the case for
which he had been arrested. He responded that he did not even know why he was
arrested. The police officer wrote something down, signed and caused him to sign
what later transpired to be his warn ing statement. In that warning statement it was
recorded that he preferred making a statement before a magistrate. He and accused
no.5 were then taken to court in Tsolo for their first appearance by warrant officers
Qokoyi and Mancoba. In court they wer e joined by their co -accused. After their
court appearance , he and accused no.5 were taken back to the OC U offices in
Mthatha . In those offices they were made to wait in an office guarded by captain
Maqubela. Accused no.5 was taken to another office. T hereafter warrant officer
Mancoba and captain Maqubela took him to a boardroom where he found more than
five other police officers including warrant officer Mlumbi from East London. The
time was around 1 or 2 pm. In the boardroom he was asked about his p ersonal
details like his names and what he did for a living. He was on leg irons and his
hands were cuffed to the back. Warrant officer Qokoyi ordered him to stand up.
Warrant officer Mancoba went behind him and pulled the leg irons causing him to fall
on his face. Thereafter a transparent plastic bag was pu lled on his head and face
thus suffocating him. He was then asked about the Tsolo robbery . He was told that
if he wanted to say something he should move his hand. He did so even though he
had noth ing to say so that he could get relief from being suffocated. After sometime
he was taken out of the boardroom by warrant officer s Qokoyi and Mancoba. While
they were outside of the boardroom warrant officer Qokoyi told another police officer
that the sh irt he was wearing needed to be removed so that it did not get torn or
become dirty. He was uncuffed and his shirt was removed.

[64] Warrant officer Mancoba asked him if he was still refusing to co -operate and he
said that he did not know what he was being asked about. He was told to familiarise
himself with statements made by the other accused. He was handcuffed again and
then he was taken back to the boardroom where he was ordered to sit on a chair.
He was suffocated aga in and asked about a certain Mag aiks and accused no.4 . He
told the police that he did not know those people. Accused no.4 was one of his co -
accused and he did not know accused no.3 before their arrest . He was again
caused to fall on the floor and suffocated. He then lifted his ha nd and the suffocation
was stopped. He was taken out of the boardroom again by warrant office rs Qokoyi
and Mancoba who said they wanted him to make a statement in which he should
include his co -accused. Mag aiks was accused no.3, however, while he knew him,
the name Mag aiks was unknown to hi m.

[65] The police told him that he had to make a stateme nt and he told them that he
could not do that. Warrant officer Qokoyi then said that what would help him was to
make a statement. He must also tell them about the whereabouts of his other
friends and the friend s of the other accused. He was also asked a bout one
Nomandela and he told the police that he did not know him. They then said that he
should make a statement because Nomandela and accused no.4 had made a
statement implicating him. The police then told him the things they wanted him to
say when ma king the statement. Some of the things they told him were the things
contained in the statement in which he implicated all his co -accused . They said that
the things they told him about had been said by Nomandela and accused no.4
without individualising w ho exactly said what.

[66] He testified that the interrogation started at 13 :00 on that day. It was not true
that it lasted about 25 to 30 minutes . He, however, could not estimate how long it
really took. There w as no break between the interrogation and him being taken to
the commissioned officer but it was already dark when he was taken to the
commissioned officer. He testified that the experience he went through on that day
was shocking as what was done to him wa s done by people he trusted. He was
taken to the commissioned officer after being told what he should say to him. He
was taken to the office in which brigadier Manyana was by warrant officer Mancoba.
He denied that he was taken to brigadier Manyana by sergeant Kutu. In that office it
was just him and the commissioned officer as warrant officer Mancoba just brought
him and then left.

[67] Brigadier Manyana introduced himself and asked for his names which he told
him. He then sa id they can start. Accuse d no. 1 responded that he had a problem.
Brigadier Manyana asked him what the problem was. He then told him that he had
been assaulted in the other office. When he told brigadier Manyana that he had
been assaulted , his response was to ask if he wanted to be taken back to those
officers who had assaulted him to which he said no. Then brigadier Manyana asked
him what he wanted him to do to which he said he had been told to come and make
a statement about something he had no knowledge of. It was at that stage that
brigadier Manyana called out warrant officer Mancoba who came within a short
period of time. Warrant officer Mancoba took him out of the office in which brigadier
Manayana was.

[68] When he was outside that office warrant officer Mancoba ordered him to lie
down on his stomach while he was handcuffed. He had to first kneel down and a s
he knelt down so that he could lie on his stomach, he was grabbed by the back part
of his vest. Warrant officer Mancoba was about to pull a plastic bag on him when
warrant officer Qokoyi said that “because you do not want to do what we want you to
do, you will eventually die”. It was at that stage that he asked to be reminded what
they wanted him to s ay so that he could say it. This was because he could see that
he was going to die. He was then taken back to the office in which brigadier
Manyana was. Upon his arrival, brigadier Manyana asked “is there something you
want to say?” He testified that h e was never given his constitutional rights.

[69] Thereafter, brigadier Manyana asked him questions and as he answered he
would record those answers. When he was done asking him questions brigadier
Manyana caused him to sign and to put his thumb print on the document. Thereafter
he was taken back to the office in which he and accus ed no.5 were kept when they
arrived from court. They were then taken to Central Police Station where they
arrived between 23:00 and 24:00 that night. He testified that the statement he made
to brigadier Manyana was not made freely and voluntarily. He sa id that d uring
interrogation he was not in his normal senses because of the suffocation as
suffocation leads to dizziness. He was then asked if he ever felt dizzy on that day to
which he then said he did feel dizzy and even fainted on that day. When what was
done to him was over, he was wet on the upper body but he could not tell whether he
was wet because of sweat or water had been poured on him. Accused no.1 testified
that when he was tortured by the police on 3 February 2016 he sustained injuries.
He explained that he once had an injury from a car accident . On that day as he was
being suffocated there would be someone on his back. That caused the pains of his
previous car accident to come back. He ended up suffering from back pains and his
thumbs w ere not working well and were numb. When asked if he reported his
injuries he said that when he was returned to the office in which they were kept
before interrogation he found a Ms Mxokozeli . He asked her to assist him with a
phone so that he could phon e home and report the matter. Ms Mx okoz eli requested
him not to report the other things to his famil y but to only tell his family that he had
been arrested. He phoned his family and spoke to his brother after which they were
taken to Central Police Stati on.

[70] The following day they were taken to Ngqeleni magistrate ’s court where he
reported to the magistrate ’s court that he was feeling some pains and requested to
be taken to hospital. The court then made an order that he should be taken to
hospital. However, he was only taken to hospital over the weekend on 6 February
2016. He was examined and given medicati on. However, the report from hospital
was not given to him. It was taken by warrant officer Mancoba.

[71] Under cross -examination, accused no.1 testified that on 31 January 2016 he
was assaulted by captain Maqubela. On the 3 February 2016 during the morning he
made a warning statement which was taken by captain Maqubela in which he told
him that he would ma ke a statement in court. He testified t hat he had made a
mistake when he said that he told captain Maqubel a that he knew nothing about this
case. It was warrant officer Qokoyi who asked him if he knew anything about this
case. During that morning before he appeared in court he was questioned by
warrant officer Qokoyi and he told him he knew nothing when he was taking a
warning statement from him. He testified that he ha d told warrant officer Qokoyi that
he knew nothing about the case of Tsolo but he did not know why warrant officer
Qokoyi changed it to record that he had said he would make a statement in court.
He said that the contents of the warning statement that he would make a statement
in court did not come from him but came from warrant officer Qokoyi. He did not tell
his attorney about that because he did not know what was written in the warning
statement. He only got to know it during the trial. He said that what was recorded in
his warning statement was not correctly recorded.

[72] During the interview after the court appearance , other than being tortured with
being suffocated with a plastic bag , he was also assaulted by his handcuff s being
tightened and someone kneeling on his back while he was lying on his stomach.
That person would also tighten the plastic bag that had been pulled over his head.
He explained that the police would first put a cardboa rd on both wrists before
tightening the handcuffs so that his wrists would not be injured . He confirmed that
he was givi ng this aspect of evidence for the first time under cross -examination. He
was then asked as he was handcuffed from the back, and he wa s on his stomach,
how a person could kneel with both knees on his back. He said that he could not
see what was happening on his back but he assumed based on what he felt. He
then said that he was not handcuffed on his elbows b ut on the handcuffs and the
wrists would be at the very lower end of his back while the person would be kneeling
near the shoulder blades. He was then asked if he did not sustain any fracture to
which he said he did not get fractured but he was not sure if he did not suffer
cracking but he was in pain. Accused no.1 was asked if after being tortured for four
hours he had no visible injuries. He testified that his wrists were swollen. He
confirmed that he was mentioning for the first time during cross -examination that his
wrists wer e swollen. He then said that although he did not tell his attorney about
swollen wrists, he reported it to the doctor in hospital. He confirmed that there were
no other visible injuries that he sustained during the interview.

[73] He testified that he was then asked to stand up during which he fell on the floor
without knowing what caused him to fall. Warrant officer Mancoba pulled his leg
irons while he was standing as a result of which he fell on the floor and could not
balance as he was handcuffed to the back. He fell and landed on his chest. He
managed to avoid landing on his head or face. When asked how he achi eved not
landing on his head or face with his hands on his back, he explained that at the time
of his arrest , he was bigger as a result of which his face would be the last part of his
body to reach or bump against the floor when he fell. It was because of his weight
then that he did not bump his face against the floor.

[74] Accused no.1 testified that brigadier Manyana never assaulted him. He merely
threatened him by saying that he would call warrant officers Mancoba and Qo koyi
which he fulfilled by call ing them. He testified that what he said to brigadier
Manyana were things that he was told to say to him. When brigadier Manyana
asked him to explain something he would explain in the manner in which he was told
to do as he did not want to be taken back to the police officers who had tortured him
before. Accused no.1 testified that what is contained in his statement was unknown
to him. He w ould be asked a question and he would respond to it. He was never
given the statements allegedly made by Nomandela and accused no.4 to read during
the interview. He was only told what was contained in their statements. He did not
know Nomandela. Police forced him to implicate himself in o ffences he did not know
about.

[75] Accused no.1 denied that brigadier Manyana told him his constitutional rights
before he took a statement from him. When he was a sked in relation to his
signatures and thumb prints on the pro -forma while his thumbs were numb, he
explained that immediately after the injury he did not really feel any pain which is
why he was able to sign. He felt the pain later. On being asked questions by the
court , accused no. 1 testified that when he was taken out of brigadier Manyana’s
office the first time, he was tortured in the passage. At some stage he screamed
while in the passage. The cardboards were put on his wrists so that he could not be
injured during questioning in the boardroom .

[76] Accused no.5 testified in the trial -within -a-trial. His evidence was that on 3
February 2016 he was in Mthatha having been arrested on 31 January 2016 in
Khayelitsha, Cape Town. On the day of his arrest he was sitting on a street
pavement leading to his home. He was with three friends of his. Two unmarked
vehicles came and stopped at a distance. The occupants of those vehicles alighted
and started shooting in their direction. Accused no.5 and his friends ran to different
directions and as he was running he was shot in the leg. After some time one of the
two vehicles, which was a black BMW came and stopped next to him . He was told
to stand up and the police officer opened the back door for him. He had one gunshot
wound to the upper area of the thigh. As a result , he had cramps and he could not
lift his leg. He was assisted in getting into the vehicle. He was not t old why he was
being put in the vehicle or where he was being taken to. He was attended to by the
paramedics after which he was taken to Khayelitsha H ospital for the treatment of the
injury. Warrant officers Maqubela and Qokoyi arrived while he was alrea dy in
hospital. However, they did not introduce themselves to him and never told him why
they were there.

[77] Captain Maqubela and warrant officer Qokoyi only introduced themselves when
they were at Goodwood Police Station where he was taken for detention. He was
ultimately taken to Par ow Police Station for detention where he was told that he was
being arrested for an armed robbery that occurred in the Mthatha area. He was only
told of his rights before he signed the SAP14 A form. This was the first time that he
was told his ri ghts. The following morning at about 10:00 captain Maqubela and
warrant officer Qokoyi arrived and said that were taking hi m to Mthatha. On the way
to Mthatha he was never given any food by the police. When he needed to take his
medication during the day he requested the police officers to buy him some food and
he gave them R50.00. They only bought him apples and water. He then ate those
apples until he arrived in Mthatha. On arrival in Mthatha he and accused no.1 were
detained at Central Police Station. The following morning which was on 3 February
2016 warrant officer Qokoyi and captain Maqubela took them to the offices of the
OCU where they were told that they were being charged for Tsolo and Ngqeleni
robbery cases. He made a warning statement and was asked about those case s.
He told the police that he had no knowledge about those cases and that he would
explain himself before a magistrate. He was referred to what was recorded in his
warning statement that he denied the charges and that he declined to make a
statement which he would make in court. It was warrant officer Maqubela who took
his warning statement after his rights were explained to him and he signed it. After
the warning statement was taken they were taken to court .

[78] In Court they were informed of their ri ghts and he requested that the State
provide him with legal representation. He was assigned a legal representative from
Legal Aid. After the court appearance, he and accused no.1 were taken to the OC U
offices. When they arrived at those offices they were placed in an office. He asked
for water and warrant officer Qokoyi went to get water for him . He took his pills after
which he was fetched by warrant officer Qokoyi and taken to a boardroom. Warrant
officer Mancoba pointed him to a chair and said that if he was going to tell them the
truth he should sit down but if he was not going to tell them the truth , he should sit on
the floor. He then sat on the chair. He was asked where he was in November 201 5
and he told the police that he was in Cape Town where he was working at the time.

[79] As was he sitting on a chair and had been put on leg irons with his hands
handcuffed to the back , warrant officer Qokoyi stood up , put the papers that were in
his possession down. He then walked as if he was going out. Warrant officer
Qokoyi then pu lled a fore nsic plastic ba g over his head and t ightened it as a result of
which he could not breath. He would remove it and put it ba ck on. He was ordered
to sit on the floor with his legs stretched. Warrant officer Qokoyi then sto mped on his
leg on the spot where there was a gunshot wound which was very painful. The
torture sto pped for a short period of time and warrant officer Manc oba read from the
papers he had in his possession in which it was said that he had committed the
offences . He denied any knowledge of having been involved in the commission of
the offences. Warrant officer Qokoyi took a chair and hooked it to his back. He then
pushed his body as if he was trying to bre ak his backbone. He had pain on the leg
from the gunshot wound, and he had pains on his back which was being bended
over the chair that was hooked on him.

[80] The torture continued from after 11:00 up to between 14:00 and 15:00. Captain
Maqubela took him out to another office. In that other office captain Maqubela said
that he was going to tell him the information that was in those statements. Captain
Maqubela and another young man read to him what was written in those papers and
told him to repeat after them. He did that repeatedly and if he made a n error a
plastic bag would be pulled over his head. The torture only stopped when one officer
said that he wa nted to charge him and take his finger prints before leaving. He then
requested to take his pills and he was allowed to do so. At that stage his hand cuffs
had been removed. He had to take pills without having eaten as he last had food in
the morning when he had porridge at the police station.

[81] At some stage he was taken from the boardroom to the office of major Mtirara
by two police officers to make a statement. What he was required to say to major
Mtirara was read to him by a young police officer together with captain Maqubela.
He was put on handcuffs and driven to major Mtirara’ s office by constable Nkankula
and another officer at PRD . They found major Mtirar a in his office at PRD building.
Constable Nkankula removed the handcuffs and placed them on the table and
handed some papers to major Mtirara. Those papers had his name o n them. Major
Mtirara asked if he could help him and he told him that he had been told to come to
make a statement and that he had been assaulted. He asked for water and
constable Nkankula brought him some water. He took his pills as he was in severe
pains. As he was taking his pills major Mtirara was writing something on the papers
he received from constable Nkankula. He was writing on his own without being told
anything.

[82] Major Mtirara asked him about what captain Maqubela and another young
officer had told him at the OC U offices. During all of this constable Nkankula was
present in major Mtirara’s office leaning against a table that was some distance away
but still in the same office. Major Mtirara did not tell h im his rights. He just kept on
writing. During the interview he was very tired and drowsy and had a headache.
When he had a headache he would use a sniff. He took out his s niff and asked
major Mtirara if he could take it and major Mtirara agreed . He was also feeling dizzy
during all that period. When major Mtirara was done h e said he did not have a
finger print pad and said they should go to the police station. He was taken to a
police station and major Mtirara followed them and they went into the police station.
At the police station major Mtirara asked for a finger print pad and took his finger
prints which he placed on the statement. He would be shown where to sign by major
Mtirara and he would sign. Major Mtirara was writing on the form what he told him
which was what he was told to say . He then just caused him to sign without reading
it back to him . After taking his finger prints major Mtirara handed the document to
constable Nkankula. He was then taken to the OC U offices after which he and
accused no.1 were taken back to Central Police Station. The following day the
detective s took them to court in Ngqeleni where he was asked about legal
representation. He told the court that he did not have an attorney and asked that
one should be ap pointed for him. He also told the court that the previous day the
police had assaulted and tortured him. He also asked the court to make an order for
him to be taken to the doctor. The magistrate made the order for him to be taken to
the doctor. Howeve r, he was only taken to the clinic a day after the ir court
appearance. From the court they were taken to Wellington Prison. Warrant officer
Mancoba took the hospital folder and never gave it back to him.

[83] Under cross -examination accused no.5 confirmed that his warning statement
was taken by captain Maqubela on 3 February 2016 and he warned him of his
constitutional rights which are contai ned in the warning statement. He was not
assaulted at that stage. After appearing in court in Tsolo on 3 February 2016 he was
taken back to OC U offices. He denied that his rights were explained to him in those
offices. During his second court appearanc e in Tsolo he advised his attorney that
warrant officer Qokoyi and captain Maqubela forced him to make a statement before
major Mtirara but his attorney did not convey that to the court . When he appeared in
court in Ngqeleni on 4 February 2016 he reported to the court that he had been
tortured by the police and was assaulted. However, he had no injuries as a result of
the assault except that his hands were swollen because of the handcuffs that were
tightened. He reported to the court that his hands were swollen. His hands were
swollen and his wrists were numb. He testified that the magistrate did not write
down that his hands were swollen. When he was detained at Wellington Prison he
was still having injuries in his hands. He told the nurse in prison about his gunshot
wound and the swollen hands and that he had been assaulted by the police.

[84] In the boardroom he was questioned from two statements and when he was
taken out of the boardroom and tortured in another office he was told what to say by
warrant officer Qokoyi and another police officer. The statement was read to him
and he had to repeat it. When he made a mistake in repeating it he would be
tortured again. The statements relate d to different incidents and he managed to
memorise everything that was being said to him. He confirmed that when he
appeared before major Mtirara he asked for water in order to take his pills and he
was given the water. When he was asked about the fact t hat his attorney had said
he was refused water he said he did not remember his attorney saying that but he
was sure that he was given water. After taking the pills he was already tired and
dizzy and the pills did not have much effect. He had headache and asked to use his
sniff. He later changed to say that the pills made his condition worse. However, he
was able to tell major Mtirara what he was told by warrant officer Qokoyi and the
other policeman. Major Mtirara completed the forms without asking him question s.
He never asked him when he was arrested and he never told him that he was
arrested in Cape Town on 31 January 2016. He never asked if he was under the
influence of alcohol or drugs and he never told him that he was not under the
influence. A ccused no.5 testified that major Mtirara misled the court when he said
that he asked for his names and surname and he did not know how the f orm had his
names written in colonel Mtirara’s handwriting.

The admissibility of confessions.

[85] In a trial -within -a-trial the court is concerned with whether the statement or
confession which the State intends to tender as part of its evidence ought to be
admitted or not. This is because section 217 of the CPA requires proof by the state
that the confession was freely and voluntarily made by the accused who must have
been in his sound and sober sen ses and without having been unduly influenced into
making the confession. Section 217 is a restatement and a statutory embodiment of
an old common law legal position that has prevailed for a very long time.
Incidentally, it is now exactly 100 years since the well -known decision in Camane3 in
which Innes CJ said:

“Now, it is an established principle of our law that no one can be compelled to
give evidence incriminating himself. He cannot be forced to do that either
before the trial or during the trial. The principle comes to us through English
law and its roots go far back in history. Wigmore, in his book on Evidence (vol
iv, section 2250) traces very accurately the genesis, and indicates the limits of
the privile ge. And he shows that, however important the doctrine may be, it is

3 R v Camane and Others 1925 AD 570 at 575.
necessary to confine it within it s proper limits. What the rule forbids is
compelling a man to give evidence which incriminates himself.”

[86] Now a 100 years since Camane the accused in this matter have invoked this
principle after the State indicate d its intention to place their confe ssions before this
Court as part of its evidence by objecting to the admissibility of the said confessions.
In a nutshell, the accused objected to the admission of the confessions on the basis
that they were tortured into implicating themselves in crimes they never committed .
These included the accused being assaulted in various ways, suffocation and threats
of further violence or torture if they did not implicate themselves. In respect of
accused no.5, there was also the objection based on him not being in his sound and
sober senses in that he had taken pills to alleviate his pain on his right upper thigh
which made him dizzy. Both accused said that they had been told what to say to the
commissioned office rs who w ere going to take confessions. The torture went on for
several hours in which they were being schooled on what to say when the police
confronted them with statements allegedly made by other suspects in particular,
accused no.4 and one Nomandela whom they did not even know. In addition to that
they alleged that they were not apprised of their constitutional rights before the y
were questioned and even the commissioned officer s did not inform them of their
rights. The version of the accused is that they were brutally tortured before making
the confessions. Central to the torture was the accused being given a story they
were going to repeat to the officers and being dri lled on what to say individually.
They were being schooled on statements that were said to have been made to the
police by accused no.4 and Nomandela who had implicated them and were being
forced to also implicated themselves.

[87] It should be remembered that the warning statements of the accused were taken
by the same police officers who allegedly tortured them into confessing. However,
when they were before the officers who took confessions from them , there is no
record of them t elling those officers that they had been tortured. Both commissioned
officers dis puted being told by the accused that they had been tortured. The
proforma document that takes an accuse d person through various stages in which
he is told and encouraged to indicate any form of torture or abuse bears no whiff of
any abuse or torture. In fact , accused no.1 testified that he was not tortured by
brigadier Manyana. He, however, claims not to have been t old of his constitutional
rights . Very strangely some of t hese rights were exercised in the warning
statements before their first court appearance and they were further apprised of their
rights during court appearance in Tsolo a few hours before they were brutally
assaulted and tortured.

[88] It was accused no .1’evidence that brigadier Many ana never assaulted him. It is
highly improbable that brigadier Manyan a would not have apprised him of his
constitutional rights. The proforma tha t accused no.1 signed details a ll the
constitutional rights and the choices that accused no.1 made having been advised of
his constitutional rights. Similarly , with accused no.5 , he was not assaulted by major
Mtirara on his own evidence and was not assaulted in the presence of major Mtirara .
It was also his evidence that when he felt he needed to take his pills he asked for
water and he was given water and was allowed to take his pills. When accused no.5
felt he needed to take his sniff he was allowed to take it. As I understand it, sniff is a
form of smokeless tobacco product that is inhaled through the nostrils. The very fact
that he was so comfortable as to have with him his sniff and was allowed to take it
when he wanted to does not sit well with the atmosphere of fear . Similarly, all the
answers that are reflected in the proforma were clearly provided by him which would
have made him aware of his rights. This is besides the fact that if the accused were
so brutally tortured as they alleged, it is very surprising that no injuries were
sustained at all and there are no records of t heir treatment in hospital and even at
the detention facilities in which they were detained immediately after their alleged
torture. It does need to be pointed out that courts routinely refer accused persons
who ask for medical assistance to hospital and issue such an order s. The mere
issuing of such an order cannot per se and without more be evidence of the accused
having been tortured. Similarly, its absence is not necessarily indicative of an
accused person not having been tortured.

[89] Having considered all the evidence that was p laced before me , I concluded that
the confessions were freely and voluntarily made and should therefore not be
excluded. I am of the view that some of the evidence of the torture of the accused
was chore ographed and rehearsed with dist urbing similarities on the allegations of
the form of torture they were subjected to in some respects. These included both of
them being dizzy at some stage. Accused no.1’s reason for dizziness which resulted
in him fainting as he said he did was suffocation whereas accused no.5 ’s dizziness
was as a result of the treatment he was taking. There is also the evidence of Dr
Mbelekan e which was to the effect that dizziness could only occur if the tablets were
overdosed. Besides, it is unclear how the alleged dizziness manifested itself during
their time with the commissioned officers who denied that it even happened . Both
accused alleged having been schooled on what to tell the commissioned officers by
being forced under brutal tortur e to memorise statements made by other suspects
that they did not even know before. On my assessment of all the evidence I came to
the conclusion that the confessions of the accused were freely and voluntarily made.

[90] In Gumede4 Zondi JA, not no long ago had occasion to articulate the legal
position on the admission or exclusion of the evidence of a confession statement
from which I quote liberally . He said:

“[20] The Interim Constitution did not expressly deal with the admissibility of
improperly obtai ned evidence. If it was found that the re had been a
violation of the accused’s rights (which were guaranteed by s 25 of the
Interim Constitution), that entitled the accused to approach the court for
an appropriate relief. In other words, it did not presc ribe a remedy for
treating unconstitutionally obtained evidence. The remedy now lies in s
35(5) of which provides as follows:
‘Evidence obtained in a manner that violates any right in the Bill of
Rights must be excluded if the admission of that evidence w ould render
the trial unfair or otherwise be detrimental to the administration of
justice.’
[21] In other words, s 35(5) requires the court to exclude evidence obtained in
a man ner that violates any right in the Bill of Rights if either the admission
of that evidence will render the trial unfair or otherwise be detrimental to
the administration o f justice.
…

4 Gumede v S (800/2015) [2016] ZASCA 148; [2016] 4 All SA 692 (SCA); 2017(1) SACR 253 (SCA)
(30 September 2016).
[23] This court in S v Tandwa made it clear that s 35(5) does not provide for
automatic exclusion of unconstitutionally obtained evidence. In this
regard it had this to say (paras 116 to 117):
‘[116] …
Evidence must be excluded only if (a) i t renders the trial unfair; or (b) is
otherwise detrimental to the administration of justice. This entails that
admitting impugned evidence could damage the administration of
justice in ways that would leave the fairness of the trial intact: but
where adm itting the evidence renders the trial itself unfair, the
administration of justice is always damaged. Differently put, evidence
must be excluded in all cases where its admission i s detrimental to the
administration of justice, including the sub set of case s where it renders
the trial unfair. The provision plainly envisages cases where evidence
should be excluded for broad policy reasons beyond fairness to the
individual accused.
[117] In determining whether the trial is rendered unfair, cou rts must take
into account comp eting social interests. The court’s discretion must be
exercised “by weighing the competing concerns of society on the one
hand to ensure that the guilty are brought to book against the protection
of entrenched human rights accorded to accu sed persons”. Relevant
factors include the severity of the rights violation and the degree of
prejudice, weighted against the public policy interest in bringing
criminals to book. Rights violations are severe when they stem from
the deliberate conduct of the police or are flagrant in nature. There is a
high degree of prejudice when there is a close ca usal con nection
between the rights violation and the subsequent self -incriminating acts
of the accused. Rights violat ions are not severe, and the resulting trial
not unfair, if the police conduct was objectively reasonable and neither
deliberate nor flagrant.”

[91] The confession statements of the accused were admitted as evidence against
the accused , on the basis that I was satisfied that the acc used’s rights were not
violated. The State called brigadier Manyana to give evidence in the main trial. He
testified that in 2016 he was a colonel in the SAPS and is now a brigadier. In 2016
he was attached to the Crime Intelligence Unit of the SAPS with offices at PRD
Building in Mthatha. On 3 February 2016 he took a confession state ment from
accused no.1. He then read into the record the contests of the original stateme nt he
took from accused no.1. The said con fession as read into the record was in respect
of the various crime scenes in which the robberies took place . I do not consider it
necessary to reflect verbatim , the accused’s statements as read into the record by
the relevant commissioned officers. The statements are clearly reflected in the
record. As indicated hereinbefore, the statement of accused no.5 was taken by
colonel Mtirara. He testified that in February 2016 he was employed by the SAPS
holding the rank of a major and was attached to the Stock Theft Until with offices at
PRD Building in Mthatha. On 3 February 2016 he took a statement from accused
no.5. He also read it into the record.

[92] After the statements of accused no.1 and 5 were read into the record the State
handed up by agreement with the defence , the post mortem report in respec t of
coun t 13, the murder of Mnikelo Nqeto who was killed during the Tsolo robbery. The
post mortem e xamination of the deceased in count 13 was conducted by Dr Qaba on
6 November 2015. In his report , Dr Qaba records that the cause of death was
abdominal injuries – gunshot. After the admission into the record of the post mortem
report in respect of the d eceased in cou nt 13, the State closed its case. At some
stage t here were changes in the legal representation of accused no.1 which resulted
in him being represented by advocate Potgieter. He applied for and was granted
leave to have some of the state wit nesses recalled. I have also considered all the
evidence tendered in this regard.

The evidence of accused no.1 in the main trial .

[93] Accused no.1 testified in his defenc e. He testified that he is 36 years ol d and
unmarried with four children. He was arrested on 31 January 2016 and his bail
application was refused and has been in custody since then. At the time of his arrest
he stayed in Ikwezi T ownship in Mthatha in a house belonging to his brother. When
he was arrested he was self -employed. He stayed in Cape Town between 2010 and
2014 after which he came back to Mthatha. Between 2010 and 2011 he was
unemployed and stayed in Cape Town. From 2011 to 2014 he was employed at SBV
Security Services (SBV) where he worked as a protection officer which involved cash
conveyance . He later worked at SBV as a custodian which entailed loading cash in
ATMs and fixing ATMs.

[94] He testified that at no stage when he worked in Cape Town did he meet
Gqweta, and he never worked with him. He only met him in Mthatha at the end of
2014. He had received a call from a former colleague who used to work at SBV who
told him that he was working in Mthatha and staying at Ngangelizwe. Accused no.1
proceeded to meet this former co lleague named Nt shongwana. That is how he got
to meet G qweta. He disputed Gqweta’s evidence that the two of them met in Ap ril or
May 2014 at a garage in Nelson Mandela Drive in Mthatha saying he never met him
in Mthatha at that stage. He also disputed Gqweta’s evidence that a week or a
month later they again met at Cweba’s Tarven and that he was driving a red BMW
vehicle at t he time. He testified that it was in November 2015 when he was driving a
red BMW. He confirmed Gqweta’s evidence that at some stage in 2015 he was at
Goldwagen which wa s at Vulindlela Heights in Mthatha where he was looking for car
parts but denied that they exchanged phone numbers on that occasion. He said that
Gqweta only requested his phone number when they met at Ntshon gwana’s place in
Ngangelizwe. He denied Gqweta’s evidence that he called him to meet at Cicira in
Mthatha and that he was with accus ed no.2.

[95] He disputed Gqweta’s evidence that durin g their Cicira meeting , he told Gqweta
that his job was to rob and he wanted to rob Fidelity. He denied that he assured
Gqweta that he knew attorneys and police officers and that he would protect him if
there were to be any problems. He testified that in 2015 he was running a taxi
business and his taxis were operating in Nyanga T ownship, Cape Town. He had
another business hiring out tents, chairs, mobile fridges , toilets and tent stages. In
2015 he also registered a construction company and was in the process of
registering a security company when he got arrested in this case. He disputed
Gqweta’s evidence that on a Saturday Gqweta called him and told him that at work
he was allocated a vehicle whose security system was not functioning properly. He
further disputed that subsequent to that call on that Saturday they arranged and met
at a place called Brickyard where they agreed that Gqweta would follow him to
Fortgale where he found accused no.2 also present . He disputed everything that
Gqweta said about Fortgale, their telephone calls around the date just before and
after the Lusikisiki robbery and the meetings that Gqweta alleged, took place. These
included denials of him handi ng money to Gqweta or even the loans that Gqweta
alleged he ask ed him for. Gqweta’s evidence is on record and I do not intend
regurgitating it , save to point out that it was all disputed by accused no.1 .

[96] On Gqweta’ s evidence that they held another meeting in Viedgesville later in
November o r early December in 2015 , he testified that at the end of November he
was in Durban where he stayed for about three weeks. He disputed telling Gqweta
to escape because some people had been arrested by the police and disputed being
in constant telephone contact with .

[97] Accused no.1 went on to testify about his arrest in Cape Town on 31 January
2016. His evidence was that he was sitting on a couch in a certain house when
baracl ava clad men entered. Two people entered first carrying rifles and instructed
all of them to lie down on their stomachs. While they were lying down another group
entered and one of them asked him if he knew him to which he said he did not know
him. That person introduced himself as warrant officer Qokoyi after which he told the
others that he, accused no.1 was Msuthu. He was thereafter handcuffed and the
belt he was wearing was removed and used to tie his legs. He was then pulled into
one of the rooms in that house where captain Maqubela suffocated him. He was not
informed of his constitutional rights. He testified that his sling bag was on top of the
chair in which he was sitting. The sling bag had a wallet, invoices, business cards ,
bank cards, his identity document and his driving licence. The polic e took that sling
bag and his cellphones. One of his cellphones, his identity document, wallet ,
business cards and the drivers licence were returned to him but his second
cellphone and the sling bag were not returned to him. He disputed the evidence of
the police that there was a firearm in that sling bag. He denied being in possession
of a firearm whose s erial numbers were filed off when he was arrested.

[98] After his arrest h e was then taken to a place called Site B where it was said that
another suspect had been shot by the police. They later proceeded to Khayelitsha
Hospital where it was reported that the suspect who had been shot had been taken
to. O n arrival at Khayelitsha Hospital warrant officer Qokoyi and other police officers
alighted and left him with captain Maqubela. They later returned with the suspect
that had been shot and wounded , which was accused no.5 in this case . Accused
no.1 testified that at that stage he did not know accused no.5 and he was seeing him
for the first time. He and accused no.5 were ultimately detained at Pa row Police
Station in sepa rate cells where they spent the night of the 31 January 2016. On 1
February 2016 he, accused no.5, accused no.3 and accused no.2 were driven to
Mthatha by warrant officers Qokoyi and Mancoba and captain Maqubela. He already
knew accused no.2 as they were both in the taxi business at Nyanga and they
worked together in his business of hiring tents in Mthatha. He and accused no.5
were detained at Mthatha Central Police Station . No food was provided to them on
the way to Mthatha. They slept in Mthatha Cent ral Police Station that night of the 1
February 2016 and in the morning of the 3 February 2016 after they had had their
porridge , warrant officer Qokoyi and captain Maqubela arrived to collect them and
took them to their OC U offices where they were caused to sign warning statements.
Thereafter they were charged and taken to court in Tsolo.

[99] The magistrate in Tsolo explained their rights to them including the right to legal
representation . He elected to instruct his own attorney. After that court appearance
they were taken back to Mthatha OC U offices where they were tortured. Later that
evening he made a statement to a commissioned police officer. He did not make
that statement voluntarily. He made i t after being tortured by the police. Later that
evening they were detained at Mthatha Central Police Station . During the course of
the day of the 3 February 2016 they were not given food. He testified that warrant
officer Mancoba was misleading the cou rt when he said that warrant officer Qokoyi
bought them food. Accused no.1 testified that he did not commit any of the crimes
for which he was charged.

[100] Under cross -examination , accused no.1 testified that during his arrest he was
not advised of the reason for his arrest in relation to the Tsolo robbery. He was only
informed that he was arrested in connection with the Tsolo robbery when he was
charged. He was never asked where he was on that day. He did not tell the police
where he was on that day because he was never asked. After he was charged he
told the police officers that he would not be saying anything and that he would tell the
court everything. The police insulted him. When he appeared in court the
magistrate informed him of the charges he was facing including the Tsolo robbery of
the 4 Nove mber 2015. He testified that he never told the magistrate that on 4
Nove mber 2015 he was somewhere else. Accused no. 1 confirmed that it was never
put to State witnesses that from the first week of December 2015 and for three
weeks thereafter he spent that period in Durban. His explanation for that was that he
was hearing the 4 December 205 being mentioned from the prosecutor for the first
time under cross -examination. It was never mentioned before and even on the day
he testified. He testified that on 4 December 2015 he was in Durban where he had
gone to submit company documents for registration in the municipality’s data base.
Accused no.1 later changed his version and said that he did n ot remember the exact
date but it was during the first week of December 2015. He did not recall exactly
what he was doing on the 4 December 2015. He had travelled alone in going to
Durban using public transport.

[101] On 14 September 2015, the day of the Lusikisiki robbery he was at
Ngangelizwe L ocation in Mthatha preparing for a church service. Accused no.1 later
changed to say that he was not sure exactly where he was and that he was around
Mthatha during that month. He confirmed that he knows Gqweta. He testified that
he first met him when he came back from Cape Town. His first encounter with
Gqweta was in Mthatha, not Cape Town. He met Gqweta at Ngangelizwe in 2014.
It was put to accused no.1 that Gqweta was never confronted with this version that
their first encounter was in Ngangelizwe during 2014 and he said he did not recall. It
was further put to him that he was telling the court for the first time under cross -
examination that his first encounter with Gqweta was in 2014 in Mthatha. He ,
however, disputed Gqweta’s evidence that they first met i n 2013 in Philippi where
Ntshong wana was also present. When he was asked if according to his version his
first encounter w ith Gqweta was in Ngangelizwe in 2014, how would Gqweta know
that during 2013 he was in Philippi in Cape Town, accused no.1 said that he had a
conversation with Ntshon gwana during which Ntshon gwana asked where he stayed
in Cape Town and Gqweta was present during that conversation. He and
Ntshon gwana already knew each other and the person who did not know him was
Gqweta. During that conversation with Ntshon gwana, they also talked about his
employment in 2013. He further said he could not have told Ntshon gwana that he
was working at Epping because Ntshon gwana knew him.

[102] Accused no.1 disputed Gqweta’s evidence that in 2013 they met at Philippi.
However, accused no.1 confirmed that in 2013 he was working for SBV at the
Epping branch but he said that he never met Gqweta in 2013. He disputed Gqweta’s
evidence that on 13 September 2015 he, accused no.1 and accused no.2 and other
men met with Gqweta at a scrapyard in Norwood, Mthatha and discussed what was
going to happen on Monday 14 September 2015. He denied that he and accused
no.2 suggested that two cellphones should be bought for the purpose of
communication before the robbery. He said that he never went to a scrapyard in
Norwood and he did not even know where it was. When accused no.1 w as asked
where he was on 13 September 2015 he said that he was not sure where he was on
that day. It was then put to him that Gqweta’s version was that on 12 September
2015 they met at Sasol Garage in Fortgale and they then travelled together to
accused n o.1’s house in Fortgale where they discussed about the robbery that was
going to be done on Monday 14 September 2015, accused no.1 merely said that
Gqweta was misleading the court. He said that he did not recall meeting Gqweta in
Fortgale and that he neve r stayed in Fortgale and did not have a house in F ortgale.
When accused no.1 was asked where he was on 12 September 2015 , he said that
he was not sure exactly where he was and what he was doing on 12 September
2015 saying he could not , in 2022 remember so mething that happened in 2015. He
disputed Gqweta’s evidence that on the 14 September 2015 d uring the Lusikisiki
robbery he drove the Fidelity cash van during the robbery and that Gqweta was
sitting next to him.

[103] Accused no.1 was then confronted wit h what he told brigadier Manyana in his
statement in which he said that he drove the cash van to a nearby place during the
robbery . He responde d by saying that when he made th at statement he was under
duress as he was assaulted and suffocated. Furthermore , before he went to make
the statement he was told what to say and he was led on what was cont ained in or
read from the statements that police had in their possession. Accused no.1 disputed
Gqweta’s evidence that after the Lusikisiki robbery they met near Sibaya’s place
where he gave him R300 000.00. He , however, accepted that Gqweta’s evidence in
that regard coincided with the conte nts of his statement that Gqweta was given a
share in the sum of R340 000.00 and that at Jimmy’s place he showed Gqweta a
pistol saying he got it during the Lusikisiki robbery. Accused no.1 however denied
that during his arrest a firearm was found in his possession inside a sling bag that
was hangin g on his body. It was put to accused no.1 that his version that was put to
State witnesses, constable Van Wyk and captain Maqubela was that the firearm was
not found in his s ling bag but in another bag in that house, accused no.1 said that he
could not di spute that. He also could not dispute that that firearm was robbed from
one of the security guards at Lusikisiki during the robbery. He maintained however,
that the said firearm was not found in his possession.

[104] With regard to the Tsolo robbery committed on 4 November 2015 accused no.1
testified that he was in Mthatha on that day and that at about 16:00 or thereafter he
was at Ngangelizwe where he was going to attend a church service. He was part of
that church service which started at about 18:00 and he took the last people home at
about 22:00. It was then put to accused no.1 that his version that he attended a
church service on 4 November 2015 was never put to State witnesses. Accused
no.1 then said that he could not recall.

[105] With regard to the St Barnabas Hospital robbery on 2 November 2015 and his
statement that he was present when that robbery was committed , accused no.1
maintained that he knew nothing about that robbery. He testified that he was no t
sure where he was after 17:00 on 2 November 2015 but in November 2015 there
was a time when he was in Cape Town. He said that it was between the first and the
second week of November because he came back from Cape Town towards the end
of the second week of November 2015. When he was asked if it was his evidence
that he was in Cape Town on that day , accused no.1 said that he was not sure
exactly whether he had already left for Cape Town on the 2 November 2015, in other
words, he was not sure where he was on 2 November 2015. Accused no.1 testified
that whatever Gqweta said about him which implicated him in connection with the
Tsolo robbery was a fabrication. After his cross -examination the c ase for accused
no.1 was closed.

The evidence of accused no.5 in the main trial .

[106] Accused no.5 opened his case by testifying in his defence. He testified that he
was arrested on 31 January 2016 at Site B, Khayelitsha, Cape Town. During his
arrest he was shot by the police and one bullet struck him. An ambulance arrived
and he was put in the ambulance which conveyed him to hospital for treatment. He
was ultimately taken to Par ow Police Station where he was detained together with
accused no.1. From the time of his arrest until he was detained , no police officer told
him why he was arrested and his constitutional rights were not explained to him and
he was not given food. On 2 February 2016 he and accused no.1 were transported
to Mthatha and they were not told why they were be ing taken to Mthatha. On 3
February 2016 in the morning they were taken from Central Police Station to the
offices of the OCU in Mthatha where they were charged. It is only then that his rights
were explained to him . He was made to sign a warning statem ent in which he said
that he would explain everything in court. They were the reafter taken to court in
Tsolo by warrant officer Qokoyi and captain Maqubela. In Court their rights were
explained to them including the right to legal representation. He was then allocated
Mr Nogumbe an attorney from the Legal Aid Board who was already in court.

[107] After thei r court appearance he and accused no.1 were taken back to the
offices of the OCU where he remained in the parade room there while accused no.1
was taken to another office. In the parade room he was told to sit on a chair if he
was going to tell the truth but if he was not going to tell the truth he should stand. He
was then questioned by police office rs incl uding warrant officers Mancoba and
Qokoyi and captain Maqubela and his rights were not explained to him. With regard
to the St B arnabas Hospital robbery on 2 November 2015 accused no.5 testified that
on that day he was in Cape Town. He was working there collecting furniture which
was transported to the Eastern Cape. His employer was a Mr Bido. His duties were
to load furniture and put prices on it and to off -load it. He started working for Mr Bido
in 2013 on a part time basis and in 2014 he was employe d on a permanent basis.
Accused no.5 denied being involved in the St Barnabas Hospital robbery in which a
smart box was taken from a Fidelity vehicle. He denied being involved in any of the
crimes that were committed during that incident. With regards t o the Tsolo robbery
on 4 November 2015 , accused no.5 also denied being involved in any of the crimes
that were committed during that incident. He testified that on both the 2 November
2015 during which the St Barnabas Hospital robbery was committed and on 4
November 2015 during which the Tsolo robbery was committed, he was in Cape
Town working for Mr Bido.

[108] He testified under cross -examination and h e said that his job with Mr Bido was
to load furniture in Cape Town and transport it to the Eastern Cape where he would
off-load it. He was also responsible for pricing its transportation to various places in
the Eastern Cape . On 2 November 2015 they first made a delivery in Komani after
which they made another delivery in Cala. After that they made another delivery in
Cofimvaba and Ngqamakwe on that day. After that they spent the night in Komani
and returned to Cape Town the following day. On Mondays, Tuesday s,
Wednesday s and Thursday s he would be in Cape Town becaus e they normally left
Cape Town on a Thursday afternoon to make deliveries in the Eastern Cape from
Friday . They would arrive in the Eastern Cape on Fridays. On Mondays, Tuesdays ,
Wednesday s and Thursdays they collected the furniture and put it in their storeroom
and on Thursdays they would load it in the truck and thereafter depart for the
Eastern Cape. On the 4 November 2015 he was in Cape Town. The truck they
were using belonged to Mr Bido and he did not know its registration number.

[109] Accused no.5 was asked if he maintained a list of the deliveries that he needed
to make. His answer was that the book he was using was taken by the investigating
officer after he told that officer that on 2 and 4 November 2015 he was busy with his
duties at work. He gave it to the investigating officer in Cape Town when he
appeared there for another case. He gave it to that officer because on 1 February
2016 he was supposed to have appeared in court. He told that police officer that on
1 February 2016 he was supposed to appear in the Blue Downs magistrates’ court.
As a result, he did not come to the Eastern Cape , he was left behind . The name of
that officer was Mkhi who has since been transferred to Butterworth.

[110] Accused no.5 later changed to say that he was appearing in court but was told
by warrant officer s Qokoyi and Mancoba that he would be taken to Cape Town for a
court appearance there. He was indeed taken to Cape Town and that is when he
gave the book to the officer who was investigating that case. As a result, his warrant
of arrest was cancelled because he was in custody in the Eastern Cape in this
matter. He said that he gave the book to warrant officer Qokoyi who was the
investigatin g officer of this case. Warrant officer Mancoba and captain Maqubela
were present in court when he handed the book to warrant officer Qokoyi. When he
went to C ape Town to appear for another case there he came back with the book.
When he appeared in Tsolo in this matter warrant officers Qokoyi and Mancoba told
him that he had a pending warrant of arrest in Cape Town and that the investigating
officer of the Cape Town case , Mr Mkhi would fetch him so that he could appear in
Cape Town. It was at that stage that he came back with that book which he then
gave to warrant officer Qokoyi. He further testified that when he went to Cape Town
for his court appearance he “got hold of that book” . The investigating officer of the
Cape Town case to ok him to his home in Cape Town. Accused no.5 later again
changed his story to say that he did not go to his home to fetch the book. He had
asked the investigating officer to be allowed to see his fami ly. He was taken home
and it was then that he requested his family to bring the book.

[111] He was paid his wages on a weekly basis by Mr Bido and it would be cash
given to him by hand. On 2 November 201 5 and 4 November 201 5 his wife was in
Pietermaritz burg but his mother was at home. His mother passed away on 30
September 2019 o r 2020. It was only his sister Nomalady who was present at his
home. His sister was present when the police went home with him to fetch the book.
When he went home to fetch the book he was not accompanied by the team that
investigated this case.

[112] Accused no.5 confirmed that on 3 February 2016 he appeared before major
Mtirara at PRD at 19:30. The contents of the statement he made to major Mtirara
were what he was told to tell him after he was assaulted . Therefore, whatever is
contained in that sta tement was what he had been told to say by the police. He was
tortured by warrant officer Qokoyi and captain Maqubela and he was told to narrate
what they were reading to him from certain statements. It was warrant officer Qokoyi
and captain Maqubela who read the statements they had with them, and assaulted
him and told him that they wa nted him to memorise it. Both of them were reading
different statements and at the same time he was being tortured. This started when
he was in the parade room and it took about an hour and some minutes or two hours
of being assaulted, tortured and school ed on what to say . Accused no.5 maintained
that what is contained in his statement is what he was schooled on by the police .
When he arrived before major Mtirara , sergeant Nkankula handed some papers to
major Mtirara. Major Mtirara then asked him what h e wa nted to say. He did not
want to say anything and major Mtirara was busy populating those papers with
information. When major Mtirara said that he had been told that he wanted to make
a statement , he asked for water. There was a water dispenser in th at office and he
wanted to take his pills as he was in pai ns. Major Mtirara told sergeant Nkankula to
bring him some water.

[113] As he was taking his tablets major Mtirara was busy populating information into
the forms. Thereafter major Mtirara asked him questions. He noticed that his name
and surname were already written in the form when he arrived before major Mtirara
but he d id not notice the rest of page 1 of the form. When accused no.5 was asked if
he noticed that the form was completed in similar handwriting , he said that he was
not a handwriting expert. When it was put to him that it was never put to major
Mtirara that his names were already filled in when he was brought before him, he
insisted that it was put to him. He then changed and said that his legal
representative put it to sergeant Nkankula that he handed the papers to major
Mtirara with the form already populated . When he was asked if what was co ntained
in the proforma did not come from him, he said that major Mtirara compl eted the
proforma and caused him to sign after which h e took his statement. Accused no.5
again changed to say that in respect of page one or two he was asked questions
from those two pages. He again changed to say that it was pages three, four and
five and then again changed to say it was pages three and fo ur and that they started
writing on page five. At this stage of his evidence under cross -examination it was
difficult to made sense of what accused no.5 was saying.

[114] Accused no.5 testified that after he had finished with the proforma , major
Mtirara said that he must tell him what he had been told to by the detectives. When
paragraph 1 of his statement was read to him which was about his personal details
like his level of education and which school he went to , accused no.5 changed to say
that that ca me from him . He further testified that major Mtirara would ask him
questions and he woul d respond. He then confirmed that a State witness, Vapi had
testified that during the St Barnabas Hospital robbery no money was taken. He was
then referred to his st atement, in which he said that they did not get the money
during that robbery. Accused no.5 was referred to other similarities between the
evidence of State witnesses and what was contained in his statement. No coherent
response came from him but he maintained his innocence insisting that he was not
involved in any of the robberies.

[115] Accused no.5 called Mr Bido to confirm his alibi on 2 and 4 November 2015 .
Mr Bido’s evidence was that he knows accused no.5. Accused no.5 grew up in front
of him and he used to work for him since 2014. Accused no.5 was in charge of the
books and also dealt with the goods, assisting in loading furniture. Accused no.5
would also travel with him in bringing the goods to the Eastern Cape . They travelled
to the Eastern Cape on Thursdays and on Fridays they would start doing deliveries
starting with nearby places around Queenstown. Mr Bido testified that he started
working with accused no.5 in 2014 and he thought that in November 2015 he still
worked for him . Mr Bido was a sked if he could still remember if accused no.5 was at
work on 2 November 2015. His re sponse was that if it was a Monday he would be
in Cape Town and that there was no day in which he would not be at work. Accused
no.5 was in charge of the books , keeping records of the type of furniture and the
number of items. However, he no longer had t he book of that period because he
went to get the books from accused no.5’s mother who told h im that accused no.5
had taken the books with a detective after his arrest. He was using a UD35 Nissan
truck. He did not know its registration numb er because he sold it in 2018.

[116] He testified that he knows accused no.5’s house in Cape Town as it was where
his truck was parked. He was shocked to hear that accused no.5 had been arrested
in connection with a robbery that occurred on 2 November 2 015 in Ngqeleni. He
would not say anything about accused no.5 allegedly being in the crime scene on 2
November 2015 when he heard that from his mother. However, he maintained that
accused no.5 was in Cape Town on that day because it was during the days he
would be at work. With regard to the Tsolo robbery on 4 November 2015 Mr Bido
said that accused no.5 would be in Cape Town on Wednesdays and Thursdays.
This, he said was based on the fact that during those days they would be in Cape
Town and they would norm ally be busy around November.

[117] Under cross -examination Mr Bido testified that he was familiar with all the
accused but he did not know their names. He saw them in Cape Town. He saw one
of the accused with accused no.1. When it was put to him that a document put
accused no.5 at the crime scene on 2 November 2015 and was asked if he knew
where accused no.5 was after 16:00 on 2 November 2015 he said that he would not
know as his evidence related to days when accused no.5 would be at work. He did
not know the dates and times because this incident happened a long time ago. He
testified that they were in Cape Town on Mondays busy collecting the goods. With
regard to the 4 November 2015 Mr Bido said that if it was a Wednesday they would
be in Cape Town but he did not know where in Cape Town. The dates were
recorded in the book which accused no.5 took with him. The case for accused no.1
was also closed after the section 213 affidavit confirming that national instructions
and standing orders applied to the members of the DPCI and that the DPCI only has
operational independence but is subject to the South African P olice Services Act 68
of 1995.

Further submissions on confessions .

[118] All the evidence having been led and the accused having testified in the main
trial, the court was asked to reconsider its admi ssion of the confessions of accused
no.1 and 5. As I understood it, the argument was that on at least two occasions
before the confessions were made , both accused exercised their constitutional
rights. The right to remain silent and the second was the right to legal
representation. It is common cause that the members of the investigating team,
warrant officer, Qokoyi and captain Maqubela caused both accused to sign warning
statements in the morning of the 3 February 2016 before they were taken to court in
Tsolo for their first appearance. In their warning statements, they indicated an
intention to say everything in court. Put differently, they chose not to tell the police
anything. It was submitted that this choice was in marked contrast to making the
confession which they did later that day. The second vital choice made by the
accused was when they appeared in court. During their court appearance , they both
chose to have legal representation with accused no.1 electing to have a privately
funded attorney while accused no. 5 elected to be assisted by a legal aid attorney
who happened to be present in court during his first appearance.

[119] As I und erstood the submission, it made no sense for the accused having
elected legal representation to suddenly chang e their minds and implicate
themselves in confessions without ins isting on legal representation. Two points
being made being that the accused wer e not informed of the right to legal
representation during the interview with the police. Secondly, the accused must
have been tortured into making the confessions. What these submissions however,
miss in the first instance is the fact that the rights are open to an accused person to
exercise and an accused person is also entitled not to exercise them . The fact that
the accused elected to say everything in court and to be legally represented during
court proceedings does not necessarily mean that during question ing with the police ,
they would have insisted on those rights . I therefore do not find it strange that they
would, after court appearance, choose on their own and without being forced to do
so, elect to co -operate with the police after their right s were explained to them in
court .

[120] If the version of the accused is to be accepted as true, it would be concerning
that all the police officers including the arresting officer s who were not members of
the investigating team who interacted with the accused would fail to observe this
basic requirement and fundamental duty of informing an accused person of their
constitutional rights when the validity of everything they do entirely depends on it.
The a ccused were arrested by different police officers at two different places on 31
January 2016. Both accused claim ed not to have been informed of their rights even
as they were being arrested by all the officers who dealt with them. In fact, all the
accuse d in this matter including accused no.2 who died and the ones who were
discharged claimed not to have been apprised of their rights. I find that not only
improbable but also false beyond reasonable doubt . This is in marked c ontrast to
accused making a ch oice when their warning statements were taken which was
essentially, a choice to remain silent. Surely, they must have been given an
opportunity to exercise a choice after their rights were explained for them to make
the choice s that they did. At that st age the accused had only interacted with the
police and the court had not yet come into the picture as they had not yet appeared
in court. The accused d id not explain how they made this choice in the manner they
did if the police were intent on not advisi ng them of their rights . If that was the case,
they would therefore not know which right to exercise and when because the rights
were not explained to them.

[121] This brings me to the accused deciding to make confessions when they were
interviewed by the police after their cou rt appearance. It was the evidence of the
accused themselves that they were confronted with statements allegedly made by
one Mcebisi Poyo, who was said to have already been shot and killed during the trial
but who was listed as accused no.4 in the indictm ent. The other statement was also
said to have been made by one Nomandela. The point the accused were making, as
I understood their evidence, was that what they said in their confessions was a mere
regurgitation under compulsion as a result of torture, o f not what they knew or
intended to say, but that which they were schooled on whilst being tortured all of
which was said to have been said by or contained in the statements of Poyo and
Noma ndela. In the first instance I must say that I struggled, even at the conceptual
level, with the idea of memorising a very long story while being assaulted and
suffocated even by the brightest of the minds in society. But even putting my
difficulties aside, even a cursor y look at the extra -ordinarily long confession of
accused no.1 which has got names of co -assailants , places , times , types of firearms
and vehicles , makes it very difficult to understand as something that one would have
memorised under duress or direct assault and suffocation. That is equ ally so
improbable as to be false.

[122] It should be remembered that accused no.5 was not charged in connection
with the Lusi kisiki robbery and was not implicated in it. However, in respect of the
crimes in which he was implicated, his confession is markedly similar to that of
accused no.1 in how it accounts for what took place in those crime scenes. This
again begs the questi on, if one accepts their evidence as they said I should , it is very
strange that they were able to memorise what they were schooled on and accounted
for in almost the same way in how the incidents occurred, how they were planned,
when they were committed a nd some of the vehicles that they used , who was with
them and which vehicles were attack ed and how they got away from the crime
scenes. This brings into serious question, the assault and torture that they allege d
were inflicted on them while they were bei ng schooled on what to say . This is
besides the fact that subsequent to the brutal assaults in which at some stage they
fell to the ground, the commissioned officers so no evidence of the accused having
been actually injured when they actually appeared be fore them .

[123] When they were before the commissio ned officers, the two accused did not
allege direct assault by the commissioned officers or even assaults in their presence.
Accused no.1’s evidence was that before he was assaulted by the police he saw
police officers as people that he could trust and rely on. How then did he not tell
brigadier Manyana about the assaults when the proforma encourages an accused
person in direct terms to do so is difficult to understand. As earlier indicated,
accused no.5 , on his version, was able to ask for water and was allowed to take his
pills by major Mtirara. He was even allowed to take hi s sniff when he felt the craving
to do so. This is in stark contrast to someone who was in a fearful environment . The
issue of the contra diction between the pocket book of sergeant Kutu and his
evidence was also relied on by Mr Potgieter, counsel for the accused . Sergeant
Kutu’s evidence was that he had taken accused no.1 to and fetched him from
brigadier Manyana before and after the confession. However, the pocket book which
he produced in court showed that at 18:20 he took accused no.1 to brigadier
Manya na. He had already knocked off duty at 20:20 and yet the rather very long
confession was completed at 22:15 the argument being that he had already
knocked off at 20:20 when he supposedly fetched accused no.1 after 22:15.

[124] Even if it may be correct that the pocketbook was accurately recorded, it does
not take the issue very far in my view. This is so because all it means is that i t could
very well be that accused no.1 wa s correct in saying that he was fetched by
somebody else from brigadier Manyana’s office. Brigadier Manyana’s evidence was
that after he finished taking the confession he stood at the door way and called out
for accused no.1 to be fetched from his office. He was not sure wh ether it was
colonel Mdingi or somebody else who fetched accused no.1. Whoever, fetched
accused no.1, even if it was not sergeant Kutu, that does not mean that accused
no.1 was assaulted. It just means that the evidence of who fetched him on 3
February 2 016 may not be correct or that the evidence of the accused is correct.
None of that takes the matter of torture and confession very far. As I conclude on
this issue, all the evidence led subsequent to the admission of the confessions as
evidence before t his Court and having re-considered the submissions relevant, I am
of the strong view that there is no reason to revisit the decision to admit the
confessions. I am more than satisfied that the decision to admit the confession s
based on the evidence that w as placed before me during the trial -within -a-trial
including that of the accused themselves all of which I have taken time to consider
was correct. The allegations of torture were, at best, unsubst antia ted and the
allegations of the accused not being inf ormed of their constitutional rights, fanciful.
In any event, it is not part of our legal framework that a mere allegation of torture
should result in the evidence so obtained being excluded. In as much as an accused
person has a right to remain silent h e or she also has a right to freely confess his
involvement in a crime for reasons that may not always be known for who knows
what goes on in the mind of a suspect at any particular time .

[125] In Ngcobo5 the court expressed the following sentiments which are, in my view,
very apt in this matter. It said:

“It is essential th at society should have confidence in the judicial system.
Such confidence is eroded where Courts on the first intimations that one of
the accused’s constitutional ri ghts has been infringed exclude evidence which
is otherwise admissible. Such evidence is very often conclusive of the guilt of
the accused. It is either admissions or a confessio n made voluntarily and
without undue influence wherein the accused implicates himself in the
commission of the offence or it is the discovery of either by way of a search or
a pointing out of objects such as the murder weapons or property of the victim
which conclusively links the accused to the crime. At the best of times but
particularly in the current state of endemic violent crime in all parts of our
country it is unacceptable to the public that such evidence be excluded.
Indeed , the reaction is one o f shock, fury and outrage when a criminal is freed
because of the exclusion of such evidence.”

[126] In Tandwa6 the Supreme Court of Appeal had occasion to clarify the
exclusionary principle as it relates to the evidence of the commission of a criminal
offence. It said:

5 S v Ngcobo 1998(10) BCLR (N) at 125E E -G.

“The notable feature of the Constitution’s specific exclusionary provision is
that it does not provide for automatic exclusion of unconstitutionally obtained
evidence. Evidence must be excluded only if it (a) renders the trial unfair, or
(b) is otherwise detrimental to the administration of justice. This entails that
admitting impugned evidence could damage the adminis tration of justice in
ways that would have the fairness of the trial intact but where admitting the
evidence renders the trial itself unfair, the administration of justice is always
damaged. Differently put, evidence must be excluded in all cases where it s
admission is d etrimental to the administration of justice including the subse t of
cases where it renders the trial unfair. The provision plainly envisages cases
where evidence should be excluded for broad public policy reasons beyond
fairness to the ind ividual accused.”

The constitutional issue.

[127] This brings me to the constitutionality of section 217(1)(a) of the CPA7. The
second leg of accused no.1 and 5 ’s attack on the confession s is their contention that
section 217(1)(a) of the CPA is itself unco nstitutional. At the core of the accused
persons’ constitutional challenge, as I read their counsel’s written submissions, on
this issue, is that during the nascent years of our constitutional democracy in 1996,
section 217(1)(a) of the CPA was amended by the passing of the Criminal Procedure
Amendment Act 86 of 1996 in which as regards section 217(1)(a) it reads:

“Amendment of section 217 of Act 51 of 1977, as amended by section 13 of Act
56 of 1979

6 S v Tandwa 2008 (1) SACR 613 (SCA) at para 116.
7 Section 217(1)(a) Evidence any confession made by any person in relation to the commission of any
offence shall, if such confession is proves to have been freely and voluntarily made by such person in
his sound and sober senses and without having been undu ly influenced thereto, be admissible in
evidence against such person at criminal proceedings relating to such offence: Provided – (a) that a
confession made to a peace officer, other than a magistrate or justice, or, in the case of a peace
officer referred to in section 334, a confession made to such peace officer which relates to an offence
with reference to which such peace officer is authorized to exercise any power conferred upon him
under that section, shall not be admissible in evidence unless confirm ed and reduced to writing in the
presence of a magistrate or justice.
11. Section 217 of the principal Act is h ereby amended by the substitution for
paragraph (a) of subsection (1) of the following paragraph:
“ (a) that a confession made to a peace officer, other than a magistrate or a
justice who is not a member of the South African Police Service , or, in the
case of a peace officer referred to in section 334, a confession made to such
peace officer is authoris ed to exercise any power conferred upon him or her
under that section, shall not be admissible in evidence unless confirmed and
reduced to writing in the presences of a magistrate or such justice .” (My
underlining).

[128] What becomes apparent in the ame nding legislation is tha t it now provides for
the exclusion of the members of the SAPS. Had the provisions of section 11 of the
Criminal Procedure Amendment Act come into effect, both brigadier Manyana and
colonel Mtirara would have, as a matter of law, b een excluded from taking
confessions by virtue of their membership of the SAPS. However, Section 14 of
amending legislation provides that:

“This Act shall be called the Criminal Procedure Amendment Act 1996, and shall
come into operation on a date determi ned by the President by proclamation in
the Gazette.”

[129] As I understood counsel’ s written argument and submissions in court on behalf
of the two accused, it is the failure of the President to gazette the proclamation of the
date of commencement of section 217(1)(a) as amended by the Criminal Procedure
Amendment Act which permits the t aking of confessions by commissioned officers
who are members of the South African Police Service when the Legislature, through
a legislative process, has determined that they shall not do so. It was submitted that
section 217(1)(a) of the CPA in its curr ent form allows a situation in which
confessions are taken by the commissioned police officers without an independent
judicial process.

[130] It is evident that the L egislature has done everything that accused no.1 and 5
would have wa nted it to do to achieve the desired objective of excluding all the
members of the SAPS including the commissioned police officers from taking
confessions. Counsel for the accused called upon this Court to do a reading in of
the words that are in section 217(1)(a) of the Crim inal Procedure Amendment Act ,
1996 in cir cums tances in which , without the court’s intervention, the Legislature has ,
on the argument made before me by counsel for the accused , done all that was
required of it. It is now up to the President to proclaim the date on which the
amendment shall come into operation. I do not think that it would be correct for this
Court in these circumstances to read into the existing legislation a provision that
exists in the amending legislation. Doing so would amount to a usurpation of the
constitutional prerogative of the President to determine the date on which legislation
comes into operation and therefore an interference in the law making pr ocess. I
similarly do not think that this Court can declare unconstitutional a legislation that
has already been amended as is the case in respect of section 217(1)(a) of the CPA.
It may very well be that the accused have another remedy, not in criminal
proceedings in my view, perhaps in civil courts to force the hand of the President.
For this reason , it is not necessary for me to decide whether or not section 217(1)(a)
in its current form is constitutional as d oing so would be futile . If what is now
required is for the President to proclaim the implementation date of the amended
section 217(1)(a) . It is not for a criminal court nor in criminal proceedings to try and
force the hand of the President by making a declaration of constitutional invalidity o f
an already amended legislation . Similarly, even the reading in would, in my view,
have the effect of amending section 217(1)(a) of the CPA when the Legislature has
already done so which would, again amount to this Court venturing into the exclusive
area of the Legislature and the President in their constitutional power to effect and
finalise legislative amendments. For all these reasons and many others, I must
decline the application to declare section 217(1)(a) constitutionally invalid or to do a
readi ng in.

The analysis of the merits .

[131] This trial is concerned with basically three armed robbery cases committed in
Lusikisiki on 14 September 2015, St Barnabas Hospital, Ngqeleni on 2 November
2015 and on 4 November 2015 in Tsolo on the N2 national road . In all three cash in
transit robber ies, there was one target, which was the vehicles of Fidelity Security
Services whose business is cash conveyance from its own premises to ATMs and
banks and from banks and businesses to its premises. That is why the crimes
committed in such incidents are commonly referred to as cash in transit robberies.
The employees of Fidelity whose job is to operate the said vehicles , to collect the
cash and to protect the cash are faced with the ever present danger of being killed
by gang s of marauding robbers who plan, make proper preparations for an attack
and arm themselves to the teeth with heavy weaponry including riffles and pistols
and in so me cases, even explosives. The guards are often injured and sometimes
killed using the weapon s and their service firearms are often taken away for the
obvious purpose of the criminals always having sufficient weapons for further future
attacks. In the Lusikisiki robbery which occurred on the R61 route between Flagstaff
and Mthatha in Lusikisiki o n 14 September 2015 , an amount of R2,5 million and
firearms were stolen and no one was killed or injured. In the St Barbanas Hospital
robbery on 2 November 2015 , less than two months later , the armed gang did not
succeed in that no money was taken but the two employees of Fidelity sustained
serious injuries inflicted by the use of the heavy weapon ry which was able to
penetrate the armoured vehicle . In respect of the Tsolo robbery on 4 November
2015 while the assailants could not force open the vault, they shot and killed M nikelo
Nqeto and his two colleagues were seriously injured and were lucky to escape with
their lives. Mr and Mrs Jama’s vehicle was high jacked and used as a getaway
vehicle.

[132] The only evidence linking accused no.5 to the St Barnabas Hospital robbery is
his own confession in which he also implicated himself in the Tsolo robbery.
Accused no.1 , also through his own confession, implicated himself in all the three
robberies. In respect of accused no.1, there is also other evidence that not only in
some respects confirms what he says in his confession but also some of it confirms
his involve ment in some of these offences as I will further elaborate hereunder. As
far as the accuse d’s confessions are concerned, it is impo rtant to bear in mind that
the L egislature has decreed that a confession on its own even with no other
evidence proving the involvement of the accused , is sufficient for a conviction
provided that other evidence exi sts outside of the confession which proves that the
offence was in fact actually committed.

[133] Section 209 of the CPA provides that:

“An accused may be convicted of any offence on the single evidence of a
confession by such accused that he committed t he offence in question, if su ch
confession is confirmed in a material respect or, where the confession is no t
so confirmed, if the offence is proved by evidence , other than such
confession, to have been actually committed.”

In respect of all the three robbery incidents , there is abundant evidence of the guards
who manned those vehicles that the robberies were actually committed. Such
evidence includes the sho oting in the case of the St Barnabas Hospital robbery and
the Tsolo robbery . That evidence has not been disputed that the robberies actually
occurred even tho ugh in both incidents , the assailants did not get the money in the
Tsolo robbery and the St Barna bas Hospital robbery. The firearms and a smart box
were however stolen in the two incidents .

[134] T he nature of the evidence aliunde which proves the commission of the offence
is unrestricted. In Skosana8, Van der Heever JA expressed himself as follows:

“The danger of innocent persons freely and voluntarily confessing their guilt
in connection with crimes which either they did not commit or which were in
fact not committed by anyone, is no doubt slight. As a result of accumulated
experience, however, different safeguards have been devised in different
countries to provide for what must be exceptional occurrences , namely
confessions by unbalanced individuals to being guilty o f crimes which they
never committed. Our practice in this regard has been codified in section
286(2). I find there no limitation placed upon the kind of evidence which may
adequately confirm the confession or provide aliunde the commission of the
offence charged.”

[135] In hi s confession , accused no.5 explains that between October and November
2015 he was with accused no.1, accused no.2, accused no.3, accused no. 6 and one
Masakhe Bokovane , one Taima, one Sitshovu -tshovu, one Svig and Boy -boy

8 R v Skosana 1960 (4) SA 723 (A) at 729 C -D.
Mntuyedwa. They were armed with two rifles whic h were brought by Sitshovu -
tshovu. He describes the vehicles they were using and the different roles they
played when they committed the St Barnabas Hospital robbery in Ngqeleni. He said,
he personally , was armed with an R5 rifle. Most importantly , he says that they did
not get the money. Accused no.5 further says in his confession that two days later
the same group armed themselves with all sorts of heavy weaponry almost as during
the St Barnabas Hospital robbery , committed the Tsolo robbery on the N2. He
explains how the y executed the robbery includ ing the high jacking of the get away car
which was a Mercedes Benz SUV which took them to Mthatha having high -jacke d it
from the driver and his wife. They thereafter left that vehicle on the way and Taima
took them for hiding in his Mercedes Benz vehicle to accused no.2’s rural home in
Ndibela Location . The following day some of them left for Cape Town. The contents
of accused no.5’s confession are aligned with some of the evidence given by some
of the State witnesses including Mrs Rwetshe -Jama .

[136] On the other hand accused no.1’s confession explains how he got to know
Gqweta and how they met in Mthatha and how they ultimately planned and executed
the Lusikisiki robb ery including with some of the people mentioned by accused no.5
and other people who may not have been present when the subsequent two
robberies of St Barnabas Hospital and Tsolo were committed, the vehicles used
during which he was armed with a pistol. H e describes the different roles they
played and unveils Nomandela about whom he testified in the trial -within -a-trial as
Taima. He got R340 000.00 and was also given R340 000.00 which was Gqweta’s
share . He later also ultimately went to Cape Town where h e was arrested . He
explains that they dispossessed the Fidelity guards of a rifle and a pistol. He then
kept the pistol for himself. He also explains in some impressive detail how the St
Barnabas Hospital r obbery was committed with some of the people who were
present in the Lusikisiki robbery and the ass ortment of firearms they were armed
with and how the Fidelity vehicle was chased into St Barnabas Hospital where it was
further pummelled with gunfire during which they did not get the money. They then
decided to try again by planning and executing the Tsolo robbery. Most importantly ,
he further adds a crucial piece of evidence, that of contacting Gqweta to check
through the registration number of th e Fidelity vehicle and to find out how it could be
opene d which Gqweta said he did not know. In any event and without any
information , they decided to take their chance s and rob it. He even explains who
amongst their number , shot Nq eto. He also confirms the high -jacking of the
Mercedes Benz that accused no.5 talked about which he also says they abandoned
somewhere .

[137] I have summarised a few aspects of accused no.1 and 5’ s confessions so that
they are easily comparable to the evidence of some of the State witnesses and the
similarities between the two confessions. This , I did also to dispel as so improbable
as to be false , the notion that the detail contained therein was from people who were
tortured and schooled into ca pturing such amount of detail in a matter of a few hours.
If one compares the evidence of Gqweta and the contents of accused no.1’s
confession , it becomes very clear that Gqweta’s evidence was both clear, reliable
with very little to no inconsistency. Accused no.1’s confession also confirms his
conversation with Gqweta on the day of the Tsolo robbery during which he asked for
and was given no information about the targeted vehicle. This piece of informati on
was a communication between accused no.1 himself and Gqweta. It could not have
come from anybody else be it Nomandela or even accused no.4 as he falsely said in
his evidence.

The accused’s alibis.

[138] This brings me to the issue of the alibis the two accused raised which for some
reason , they elected not to raise them when the trial began. In any event the alibis
themselves were clearly false and misguided after-thought s. On 2 and 4 November
2015, a ccused no.1 was not sure whether he was in church or not or whether he was
in Cape Town or even in Durban during that period. Bido’s evidence , properly
considered, was that of a witness of convenience brought to corroborate the false
story of acc used no.5 who on his evidence, wa s taken to his home to see or visit his
family but ends up being given Bido’s crucial book which was some how taken by
Qokoyi , for Qokoyi , to do what with it is unfatlomable . I am not unmindful of the fact
that an accused person d oes not have to prove his alibi . This has been the legal
position since time immemorial as eloquently stated in Hlongwana9 in which the
court re -affirmed this legal position as follows:

“The legal position with regard to an alibi is that there is no onus on an
accused to establish it and if it might reasonably be true he must be acquitted.
But it is important to point out i n applying this test the alibi does not have to be
considered in isolation. The correct approach is to consider the alibi in the
light of the totality of the evidence in case and the court’s impressions of the
witnesses.”

[139] Other tha n the ill -conceived and misguided alibis , both accused’s evidence was
not only largely improbable as to be false but also it tended to be very little, if
anything more than incoherent bare denials which were told with boldness , told with
the sole purpose o f misleading the court to avoid being held accountable for their
criminal conduct. This is besides a number of crucial aspects of their evidence
which was somehow not put to State witnesses and would be heard for the first time
either when the accused the mselves testified and at times an afterthought and a
desperate attempt at explaining the inexplicable by such evidence being heard for
the first time under cross -examination. This is an issue that a court , no less than the
Constitutional Court dealt with authoritatively in SARFU10 in which the court said:

“The institution of cross -examin ation not only constitutes a right, but also
poses certain obligations. As a general rule it is essential, when it is intended
to suggest that a witness is not speaking the truth on a particula r point, to
direct the witness’ attention to the fact by quest ions put in cross -examination
showing that the imputation is intended to be de nied and to afford the witness
opportunity, while still in the witness box of giving any explanatio n open to the
witness and of def ending his or her character. If a point in dis pute is left
unchallenged in cross -examination the party calling the witness is entitled to
assume that the unch allenged witness’ testimony is accepted as correct.”


9 R v Hlongwana 1959(3) SA 337 (A).
10 President of the Republic of South Africa and Others v South African Rugby Football Union and
Others 2000 (1) SA 1 CC para.
[140] The improbability of accused no.1’s evidence and ther efore its falsity is so
made clear even by his suggestion that the firearm he showed Gqweta at Jimmy’s
place which was found in Cape Town was either somewhere in the ho use having
possibly been put there by another person in the house in which he happened t o be
present . It gets worse as it was submitted on his behalf that because no chain
evidence was led on that firearm, it could very well be that the firearm found by
constable Van Wyk in that house at Ilitha Park, Khayelitsha, Cape Town when
accused no.1 was arrested , may not even be the firearm that was exhibited in court.
This is despite the fact that there is unchallenged evidence that it was taken from the
employees of Fidelity, in particular Phumelo in Lusikisiki on 14 September 2015
during the Lusik isiki robbery in which there is abandon evidence indicating accused
no.1’s involvement .

[141] The alibi of accused no.5 and the evidence of Mr Bido amounted to no more
than that , if the date of the commission of the offence was during any of the seven
days of the week, he could not have committed it . This was because he said on
Mondays to Thursdays he would be collecting furniture in Cape town and preparing it
for delivery in any of the towns in the Eastern Cape. On Thursday s accused no.5
would be departing from Cape Town arriving in the Eastern Cape on Fridays. The
deliveries would commence on Fridays to Saturdays and on Sundays they would be
driving back to Cape Town which accounts for the whole 7 days of the week. This is
patently fal se in light of the evidence of his own confession which places him in the
crime scenes in Ngqeleni and Tsolo. The evidence of Mr Bido was not that accused
no.5 was with him on 2 and 4 November 2015. It was that if those offences were
committed between Mo ndays and Thursdays then he was with him. All of this
ignores the fact that there is no evidence of the existence of this transport business
beyond their mere ipse dixit , no delivery b ook, no receipt, no tax return, no company
registration documents, no salary advic e and in fact his salary was given to him by
hand, not even deposited in a bank account as he t estified. Juxta posed with the
evidence of his confession which places him in those crime scenes , the whole alibi is
palpably false and stands to be r ejected as an ill -conceived idea to mislead this
Court . This is not to impose a burden on an accused person to prove his innocence
by proving his alibi. It is simply to weigh the evidence of the alibi together with the
other evidence and not to assess it in isolation . There is therefore no reasonable
possibility that accused no.5 was in Cape Town on 2 and 4 November 2015 when
the St Barnabas Hospital and Tsolo robberies were committed. His evidence and
that of Mr Bido is not only improbable but it is clearly false beyond reasonable doubt .

[142] I consider it necessary to refer and quote generously the case of Musiker11 in
which Tshiqi JA restated the law on alibi defence as follows:

“15. The fundamental problem with the decision of the magistrate is the
approach he adopted in regard to the evidence of the appellant, his alibi
defence and that of the two State witnesses . He, with respect, failed to
take into account the fact that it was the State that bore the onus to prove
the guilt of the appellant. Once the appellant raised the alibi defence, that
alibi had to be accepted unless it was proved to be false beyond
reasonable doubt. That did not happen. The evidence of the appellant’s
wife that he was at home at the time of the incident was not challenged.
The magistrate was faced with the evidence of two State witnesses who
placed the appellant at the scene of the in cident and the appellant’s own
evidence, together that of his wife which placed him at home. In effect the
magistrate was faced with two mutually destructive versions. This being
the case:
‘The magistrate had no sound reason to prefer the evidence of the
complainant [and Mabena] to that of the appellant ( Peterson v S [2006]
JOL 16082 (SCA) para 8).
16. This court in S v Liebenberg 2005 (2) SACR 355 (SCA) paras 15 and 15
stated: ‘(O)nce the trial court accepted that the alibi defence could not be
rejected as false, it was not entitled to reject it on the basis that the
prosecution had placed before it strong evidence linking the appellant to
the offences. The acceptance of the prosecution’s evidence could not, by
itself alone, be a sufficient basis for rej ecting the alibi defence. Something
more was required. The evidence must have been, when considered in
its totality, of the nature that proved the alibi defence to be false. In S v

11 S v Misiker 2013 (1) SACR 517 (SCA) paras 15 -16.
Sithole and Others 1999 (1) SACR 585 (W) the test applicable to criminal
trials was restated in the following terms at 590 g -i:
“There is only one test in criminal case, and that is whether the evidence
establishes the guilt of the accused beyond reasonable doubt. The
corollary is that an accused is entitled to be acquitted i f there is a
reasonable possibility that an i nnocent explanation which he proferred
might be true. Thes e are not two independent tests, but rather the
statement of one test, viewed from two perspectives. In order to convict,
there must be no reasonable d oubt that the evidence implicating the
accused is true, which can only be so if there is at the same time no
reasonable possibility that the evidence exculpating him is not true. The
two conclusions go hand in hand, each one being the corollary of the
other. Thus in order for there to be a reasonable possibility that an
innocent explanation which has been pro ferred by the accused m ight be
true, there must at the same time be a reasonable possibility that the
evidence which implicates him might be false or mistaken’.
…
Where a defence of alibi has been raised and the trial court accepts the
evidence in support there of as being possibly true, it fo llows that the trial
court should find that there is a reasonable possibility that the
prosecution’s evidence is mistaken or false. There cannot be a
reasonable possibility that the two versions are both correct. This is
consistent with the approach to alibi evidence laid down by this Court
more than 50 years ago in R v Biza 1952 (4) SA 514 (A). At 521 C -D
Green berg JA said:
“If there is evidence of accused person’s presence at a place and at a
time which makes it impossible for him to have committed the crime
charged, then if on all the evidence there is a reasonable possibility that
his alib i defence is true, i t means that there is the same possibility that he
has not committed the crime, ’”

The firearm charges .

[143] The last issue to be dealt with is that of the accused’ s possession of firearms.
The evidence before this Court is that during the St Barnabas Hospital robbery,
accused no.5 was armed with an R5 rifle. This, he says so himself after explaining
how they shot at the Fidelity vehicle ’s wheels and they chased it all the way to a
certain hospital which it is n ot in dispute that the said hospital was St Barnabas
Hospital in Ngqeleni. He was obviously using that firearm which he had no licence to
possess it and therefore he was in unlawful possession of that fire arm and
ammunition. However, on 4 November 2015 when the Tsolo robbery was
committed , accused no.5 was not in possession of the R5 rifle he used during the St
Barnabas Hospital robbery on 2 November 2015. He was in unlawful possession of
Banele Ndlebe’s 9mm Z88 pistol while Banele Ndlebe , the former accused no.3 , was
a driver and was unarmed. On the other hand, accused no.1 says he was in
possession of a pistol during the Lusikiskiki robbery. However, before the St
Barnaba s Hospital robbery was committe d, there was a day in which he was in
possession of an R5 rifle. This, he describes as the first day of their attempt during
which they did not go ahead with the robbery as planned. However, on the following
day when they actually carried the robbery and in fact fired shots at the Fidelity
vehicle, they were all armed with an assortment of firearms. On that second day, it
is unclear if he was in possession of any firearm. What is clear is that the vehicle
was shot at by some of them hence the damage to the vehicle itself and the injuries
Fidelity employees Mlenga and Vapi sustained. There is no clear evidence of
himself being in possession of any firearm. He must therefore be given the benefit of
doubt.

[144] When they did not get the money they decid ed to commit the Tsolo robbery.
They did not get assistance from Gqweta whom he calls Booi who told them that he
did not have information on the vehicle in that route as it was not his route. On this
occasion, amongst other vehicles, his own bakkie, a To yota Hilux was driven by one
Bhiza whose duty was to clear the road when he saw police vehicles and to inform
others. Accused no.1 says that during that incident, other than the shots that were
fired at the Fidelity employees , Mphako and his colleagues as well as the fatal shot
that killed Nqeto , the police were also shot at. At some point accused no.1’s own
firearm jammed , or as he put it, had a stoppage. He also fired four shot s in the air so
that the Fidelity guards would not take note of their getaway vehicle and Magaiks
high jacked a Mercedes Benz whose model he was not sure about.

[145] The point is that during the Tsolo and Lusikisiki robber ies accused no1 was on
his own confession, in possession of firearms and ammunition while his co-
assailants were al so armed with different assortment of firearms. That being the
case, the issue of joint possession of fire arms does not even arise because both
accused no.5 and 1 were per sonally armed during the Lusikisiki and Tsolo robberies
in respect of accused no.1 while accused no.5 does not appear to have been
present in the Lusikisiki robbery but was present and armed during both the Ngqeleni
and the Tsolo robberies.

The doctrine of common purpose.

[146] The last issue is that in preferring charges against the accused , the State also
relied on the doctrine of common purpose. It is not in dispute that the accused
possibly with the leadership and guidance of accused no .1 who seems to have been
the main man, organised themselves into a group that pre -planned and organised
themselves into a mini army with an assortment of weaponry including rifles, hand
guns and pistols. They organised and ensured that they had the neces sary
ammunition for those weapons which they used very effectively and shot and injurie d
Fidelity employees who were in the cash vehicles during the St Barnabas Hospital
and Tsolo robberies. They organised several vehicles for each robbery and
constitute d themselves into a mini army in which accused no.1 would always be
amongst their numb er on each robbery . Their modus operandi was that the Fidelity
vehicles were followed and there would be communication amongst them about how
the robbery would be effected and at what point they would pounce in the journey of
the unsuspecting Fidelity employees who unexpectedly found themselves under a
hail of bullets from heavy g un fire .

[147] Not so long ago the Constitutional Court ha d occasion to restate and clarif y the
law on the doctrine of common purpose . Be cause of the nature of this matter and
the fact that the shooting that occurred during the St Barnabas and Tsolo robb eries
were done by several assailants with different targets as most , if not a ll of the
members of the group were shooting when ever they deemed it necessary for them
to do so with the result that at least five Fidelity employees were shot at and suffered
serious injuries and one of them was fatally injured . The common feature in all the
incidents was that the assailants worked together as a group playing different roles
to achieve a common design and objective of robbing the Fidelity vehicles and
stealing the firearms.

[148] I therefore consider it very u seful to quote generously once more from the
recent judgment of the Constitutional Court judgment in Tshabalala and Ntuli12 in
which the court said:

“Burchell defines the doctrine of common 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 crime’
Synman elaborates 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 purpose, the
conduct of each of them in the execution of that purpose is imputed to the
others.”
These requirements are often couched in terms which relate to crimes such
as murder.
The liability requirements of a joint criminal enter prise 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. In the latter instance the liability arises from an activ e association and
participation in a common criminal design with the requisite blameworth y state
of mind.
It is trite that a prior agreement may not necessarily be express but may be
inferred from surrounding circumstances. The facts constituting the

12 Tshabalala v S; Ntuli v S 2020 (2) SACR 38 (CC), 2020 (5) SA 1 (CC) paras 46 -49.
surrounding circumstances from which the inference are sought to be drawn
must nevertheless be proved beyond reasonable doubt. A prior agreement to
commit a crime may invoke the imputation of conduct, committed by one of
parties to the agreement which falls w ithin their common design, to all the
other contracting parties. Subject to proof of the other definitional elements of
the crime, such as unlawfulness and fault, criminal liability may in the
circumstances be established.”

[149] In all these circumstances, the State has proved the guilt of the accused
beyond reasonable doubt in respect of all the robberies for which they were charged.
While accused no.1 was present in the St Barnabas Hospital robbery, there is no
evidence of hi m being armed on that day, whatever other role he may have played
for which he stands to be convicted but must be acquitted in respect of the unlawful
possession of firearms and ammunition in respect of that specific robbery. The
evidence of Anele Gqweta, the section 204 witness , was impressively clear, credible
and reliable in all material respects even taking into account any imperfections
including him being a single witness . In fact , his evidence has established the guilt
of accused no.1 not only in respect of the Lusikiskiki robbery but also in respect of
the Tsolo robbery above and beyond accused no.1’s confession in respect of those
robberies. He is therefore granted immunity from further prosecution as provided for
in section 204 of the CPA.

[150] In the result, the State has proved the guilt of accused no.1 and accused no. 5
beyond reasonable doubt. They are therefore found guilty as follows:

1. Accused no.1 is found guilty of count 1, the aggravated robbery in respect of
the Lusikisiki robbery.
2. Accused no.1 is found guilty , in respect of count 2, the unlawful possession of a
firearm during the Lusikisiki robbery .
3. Accused no.1 and 5 are found guilty in respect of count 7, aggravated robbery
in respect of St Barnabas Hospital robbery , in Ngqeleni .
4. Accused no.1 and 5 are found guilty of the attempted murders of Kwanele Vapi
and Mphumezi Mlenga in respect of counts 8 and 9, during the St Barnabas
Hospital robbery.
5. Accused no.1 is found not guilty in respect of count s 10 and 11 , the unlawful
possession of firearm s and ammunition during the St Barnabas Hospital
robbery.
6. Accused no.5 is found guilty of counts 10 and 11, the unlawful possession of
firearms and ammunition during the St Barnabas Hospital robbery.
7. Accused no.1 and 5 are found guilty of count 12, the aggravated robbery in
respect of the Tsolo robbery.
8. Accused no.1 and 5 are found guilty in respect of count 13, the murder of
Mnikelo Nqeto during the Tsolo robbery.
9. Accused no.1 and 5 are found not guilty in respect of count 14, the attempted
murder of Yolisa Mlungwana.
10. Accused no. 1 and 5 are found guilty in respect of cou nts 15, 16 and 17 , the
aggravated robbery of the Mercedes Benz ML 63 of Mr and Mrs Jama, the
unlawful possession of firearms and ammunition during the Tsolo robbery and
the high jacking of Mr and Mrs Jama’s vehicle .


_________________________
M.S. JOLWANA
JUDGE OF THE HIGH COURT


Appearance

Counsel for the State : M.L Makubalo
Instructed by : NPA
MTHATHA

Counsel for the accused No.’s 1 and 5: H.J Potgieter
Instructed by : Groenewald Attorneys
GAUTENG

Date delivered : 2 and 3 June 2025