IN THE HIGH COURT OF SOUTH AFRICA
(POLLSMOOR CIRCUIT COURT, WESTERN CAPE DIVISION, CAPE
TOWN)
Case no: CC 82/2020
In the matter between:
THE STATE
and
CEBO SOBOYISE ACCUSED 1
ZOLA GOLELA ACCUSED 2
Heard: 20 October 2025-3 December 2025, 19 January 2026- 6 February
2026, 13 February 2026, 20 February 2026
Delivered: 27 February 2026
JUDGMENT
Bhoopchand AJ:
[1] The State has charged Accused 1, Mr Cebo Soboyise (‘Soboyise’) with
fourteen counts and Accused 2, Mr Zola Golela (‘Golela’) with thirteen counts
arising from a series of crimes that occurred between 16h30 on Tuesday , 26
November 2019, and 01h30 on Wednesday, 27 November 2019. The trial in this
matter was unduly protracted for various reasons including the availability of
Counsel, witnesses and Cour t officials, and logistical delays in conveying the
Accused to Court. The Accused initially objected to being tried at the Pollsmoor
Circuit Court but withdrew their objection after large sections of the security
bars installed in the Court were removed. The latter part of the trial (defence
argument and judgment)was moved to the High Court.
[2] The first crime scene involved the Makaza Shoprite liquor store, in
Khayelitsha (‘the liquor store robbery’) where a security guard and two cashiers
were robbed at gunpoint . The second crime scene at Badele Street , Leiden,
Delft, concerned the fatal shooting of the two Zwakala brothers , Siyanda and
Siyabonga (‘the shooting of the two brothers’) . The third crime scene at
Thubelitsha, Delft , involved robbery with aggravating circumstances and the
fatal shooting of Thanduxolo Wiseman Stuma, a police officer (‘the shooting of
the police officer'). His cellphone was stolen. The fourth crime invoking counts
8,9,10,11, and 12 , involved a robbery and attempted murder at the Idahoff
superette on Voortrekker Road, Bellville (‘the Idahoff superette robbery ’). The
Accused were discharged on these counts pursuant to their section 174
applications at the end of the State’s case . The fifth crime scene in Mfuleni was
where the Accused were arrested. Count 13 involved a charge of possessing a
firearm with its serial number erased. Accused 1 was, in addition, charged with
the possession of ammunition.
[3] Under section 220 of the Criminal Procedure Act 51 of 1977, the
Accused admitted that a robbery occurred at approximately 16h30 at the liquor
store. The post mortem reports and photograph ic albums relating to the two
brothers and the police officer, the photographs taken at the Idahoff superette
robbery, and of the Accused at the Mfuleni police station were also admitted.
Accused 2 admitted that a blue Toyota Yaris (‘Yaris’) and a Star pistol
belonged to him. Both Accused admitted that they were arrested at about 01h30
on 27 November 2019 in Main Road, Mfuleni , and th at primer residue and
touch DNA tests were performed on them.
[4] The State tendered the evidence of eighteen witnesses, and the Accused
testified. Their evidence was evaluated for c redibility, reliability, and the
probabilities, viewed holistically1 against the totality of the proved facts. The
Court remained cognisant of the principle that the State bore the onus of
proving the Accused’s guilt beyond a reasonable doubt and of its corollary that
the Accused are entitled to be acquitted if their versions and testimony were
reasonably possibly true. 2 The State based its evidence concerning the
Accused’s guilt on the remaining counts entirely on circumstantial evidence as
it could not place either directly on the crime scenes . The Accused countered
the State’s case against them with alibi evidence . They protested that they were
not present at the crime scenes as they were engaged in other activities. The
Court has taken the appropriate guidance from the caselaw on alibi 3,
circumstantial4, and common purpose evidence5 and the obligations concerning
witness cross-examination6.
1 Shilakwe v S 2012 (1) SACR 16 (SCA) at para 11
2 S v Sithole and Others 1999(1) SACR (W) at 590G-591C
3 R v Biya 1952 (4) SA 514 (A) at 521 C-D, S v Liebenberg 2005(2) SACR 355 (SCA) at 359 A-D, S v
Malefoe en Andere 1998 (1) SACR 127 (W) at 158 A-B
Malefoe en Andere 1998 (1) SACR 127 (W) at 158 A-B
4 R v Blom 1939 AD 188 at 202-203, S v Morgan and Others 1993. (2) SACR 134 (A) at 172-174 e-f
5 S v Mgedezi and Others (415/1987) [1988] ZASCA 135; [1989] 2 All SA 13 (A)
6 President of the Republic of South Africa and Others v SARFU 2000 (1) SA 1 (CC) at 36J-37E, Browne
v Dunn (1989) 6 (HL), S v Scott-Crossly 2008(1) SACR 223 (SCA) at 237 G
THE LIQUOR STORE ROBBERY
[5] Counts 1, 2 and 3 concern this robbery as it applied to Ayanda Nondlozi
(‘Nondlozi’), Bulelwa Zulu (‘Zulu’), and Lelethu Jack (‘Jack’) respectively. All
three complainants testified. Jack and Zulu were employed as cashiers at the
liquor store. Their shift coincided on 26 November 2019. A t about 16h30, a
customer asked Zulu for R100 cashback (drawing of money from a card) . She
did not have th e money in her till and referred the customer to Jack. After Jack
assisted the customer, he left the store , only to return with a gun in his right
hand. He warned the cashiers not to press the panic buttons, came around the
counter and dislodged Zulu’s till drawer from its point of connection. Jack
opened her till, and the assailant helped himself to the cash from it. On his way
out, the person discharged his firearm. The bullet lodged in the wall behind the
cashiers.
[6] Jack testified that the person who approached her wore sunglasses. She
saw another person standing at the door of the store. The store’s security guard
was lying on the floor. When the shooter exited, the other person left with him.
She noticed the till drawers were left at the door. The store management came
in thereafter, and the police were called. The whole incident took about two to
three minutes. Zulu, the s econd cashier, confirmed the first cashier's testimony
that a person had approached them for cashback and that the person returned
holding a firearm and demanded money . He proceeded to rob them of the
money in the tills. She heard one gunshot when they left , and she fainted. She
heard another person saying , 'I told you not to shoot ’. Zulu fainted after she
heard the gunshot. Neither could describe the physical or facial features of the
robbers.
[7] Under cross-examination, Jack was challenged on the content of her
statement, which suggested that the robbery occurred on 27 November 2019 and
that two persons had approached her for cashback and both returned with
firearms. Jack had also mentioned in her statement that she heard two gunshots.
Neither Counsel for the Accused cross-examined Zulu.
[8] Ayanda Nondlozi guarded the entrance of the liquor store on the day of
the robbery. He was employed by a private security company and checked the
till slips of customers against their purchases when they left the store. His co-
worker had taken his tea break . A well-built person wearing shorts and sandals
appeared with a firearm in his right hand. He had a strap over his shoulder. This
suspect was accompanied by another person who was slender and darker in
complexion and also held a firearm in his right hand. The well-built person held
him from behind as the slender person approached the tills. He was pushed to
the ground, and his hands were tied behind his back. The person took his phone
and kept him on the ground by pressing his foot against the nape of Nondlozi’s
neck. He heard a gunshot. He did not see anything else. Counsel for Accused 1
asked a few questions, and Counsel for Accused 2 did not ask any
[9] Mr Andries Muller Bosman (‘Bosman’), employed as an investigator at
Shoprite, downloaded the footage of two cameras from the digital video
recorder. He handed a copy of the footage to the police the following day. The
recordings covered the area over the front entrance to the shop and from behind
the area where the cashiers sit. The footage began at 16:30. A suspect wearing a
black cap, sunglasses, a yellow t-shirt with a de sign on it, and blue shorts and
takkies walked into the store at 16:33: 04. The suspect had a bag in his hand.
Two further suspects, both with firearms in their hands, were identified. One
had a red cap , blue shirt , grey pants, blue sneakers with white laces and the
had a red cap , blue shirt , grey pants, blue sneakers with white laces and the
other a crème-coloured cap, dark blue t-shirt with yellow and red emblems on it
and white and blue short pants and flip flops . They both grabbed the security
guard outside the store. There were two cashiers at the tills . The suspect with
the yellow t -shirt and black cap proceeded to the tills. The suspect with the
crème-coloured broad-brimmed cap remained at the door.
[10] At 16:33:41, the suspect with the red cap was seen behind the counter
where the cashiers stood. At 16:33:42, the suspect with the yellow t -shirt and
black cap proceeded to put the till drawers into his bag. The suspect with the
black cap with an emblem on it proceeded to leave the store. The suspect with
the broad-brimmed cap entered the s tore. The footage also showed that a
pamphlet stand had fallen over by the door. There was no clear depiction of the
faces of the suspects in the footage. At 16:34:28, the suspect with the broad-
brimmed cap fired his gun at the cashiers. Counsel for Accused 1 questioned
Bosman on the chain of custody of the footage as well as on whether he could
detect digital manipulation. Counsel for Accused 2 put to the w itness that her
client was never present at the store when the footage was recorded , a question
that the witness would have not been able to answer.
[11] The three witnesses who testified about the liquor store robbery were
unable to identify the Accused as the perpetrators. The cashiers were terrified,
and at times hysterical, when they testified. They avoided looking at the
Accused and their testimony had to be paused to allow them to recover. The
Court has considered the incomplete recollection o f events and the
inconsistencies between the testimony and statements of Jack against the efflux
of time since the robbery occurred and the trauma that it inflicted on them .
Despite certain discrepancies regarding the number of shots fired and the
precise movements of the robbers, their accounts of the essential features of the
robbery were consistent, credible, and reliable. They described two-armed
robbery were consistent, credible, and reliable. They described two-armed
perpetrators, one approaching the tills and the other remaining near the
entrance, a demand for money, the t aking of cash and a cellphone, and a
gunshot as the robbers fled. These core features align with the video footage and
with the objective evidence subsequently discovered. Their testimony, while not
implicating the Accused directly, provides a coherent and credible account of
the robbery that forms an important part of the evidentiary framework.
[12] The video footage of the liquor store robbery, introduced through the
evidence of Bosman, constitutes objective and reliable real evidence. Bosman’s
testimony established the authenticity and continuity of the recordings, which
were downloaded directly from the digital video recorder and handed to the
police the following day. It corroborates the evidence of the cashier and the
security guard to a larg e extent. The footage as observed and documented by
Bosman, the Court and Counsel, depicted the three perpetrators, each with
distinctive clothing, entering the store at approximately 16:33. Two of them
were armed and restrain ed the security guard at the e ntrance, while the third
proceeded to the tills, remove d the drawer s, and place d them into a bag.
Although the faces of the perpetrators were not clearly visible, the video
provided a coherent and objective account of the number of perpetrators
involved, the clothes worn by the m, their general physical build, and how the
robbery occurred. It has probative value and forms an important component of
the circumstantial evidence that must be evaluated together with the other
evidence in determining the identity of the perpetrators.
THE FATAL SHOOTING OF THE TWO ZWAKALA BROTHERS
WITNESSES: SANDISWA ZWAKALA, CONSTABLES SKONDO -
DOBU AND MSONGO
[13] Counts 5 and 6 covered the fatal shooting of the two brothers. Their
father, Sandi swa Zwakala, testified. He was at home with his two children ,
Siyabonga and Siyanda, on the night of 26 November 2019 . Both he and
Siyabonga were preparing to sleep , and Siya nda went outside to smoke. He
heard gunfire and Siyanda scream ing simultaneously. Both he and Siyabonga
went to the passage. He saw a man standing in the lounge with a firearm about
two metres away from them. The person asked them to turn on the light. As the
person was leaving, Siyabonga went to the burglar bars , and he was shot. He
held Siyabonga as he was dying. He put on the l ight and saw Siyanda on the
other side of the sofa. Siyanda appeared as if he was dead.
[14] Sergeant Nokotula Skondo Dobu attended to this crime scene. She saw
the body of a male person lying face down by the door, bleeding from the upper
body. The father pointed out the second body in the house. The father told her
that he had gone to bed at the same time as the second son did. The first son
went out to smoke. The father heard shots outside. The father and the second
son went out to look. He saw one suspect leaving after the second son was also
shot. Both people who were shot are no longer alive. Constable Andile Msongo,
the partner of Skondo Dobu , testified that the father told them that two of his
sons were gunned down. Skondo Dobu took the statement. Neither Counsel for
the Accused cross-examined these witnesses.
[15] The evidence relating to the murders of Siyabonga and Siyanda Zwakala
was led through their father and the two police officers who attended the scene.
The father’s testimony was emotionally char ged but credible. He described
hearing gunshots, encountering an armed intruder inside his home, and
witnessing both sons being shot. The shock and trauma of the incident explain s
his inability to recall the perpetrator’s appearance . It does not detract fr om the
reliability of his account of the events. The police officers’ evidence, which was
not challenged in cross ‑examination, corroborated the father’s narrative and
not challenged in cross ‑examination, corroborated the father’s narrative and
established the positions of the bodies, the presence of spent cartridges, and the
damage to the father’s vehicle. Although none of these witnesses identified the
perpetrator, their evidence reliably establishes the presence of an armed
perpetrator and how the murders occurred. The Court must look to the
circumstantial evidence to establish whether the Accused could be linked to the
murders of the Zwakala brothers.
THE FATAL SHOOTING OF THE POLICE OFFICER
SAKELE MAFUYA, SERGEANT SONAMZI
[16] The theft of the cellphone and the fatal shooting of the police officer were
covered by counts 6 and 7. Sakele Mafuya (‘Mafuya’), a 41-year-old male,
testified that he was at home after midnight with his brother and friends. He had
returned from work doing ceilings at the civic centre. The police officer, Stuma,
a friend of his brother, was with them d rinking. His brother asked him to
accompany Stuma to his home, which is near theirs. They had to walk through a
passage alongside the brother’s house to reach the street. When they reached the
street, Stuma was on his phone. Mafuya saw a car approaching. The car slowed
down. The driver asked Stuma to come nearer. The driver spoke to Stuma , but
Mafuya was unable to hear their conversation. The driver and Stuma were
fighting over the cellphone. The driver was well-built and wearing a yellow t -
shirt. A passenger came out from the other side of the car and went around its
front. The passenger was wearing a navy T-shirt and white striped shorts. He
had a firearm in his hand. He pointed the firearm at Stuma and asked him for
the phone. Stuma hit out at this person , and the cellphone dislodged and flew
over the person’s head. The passenger went in search of the cellphone.
[17] There was street lighting at the scene , and nothing hindered Mafuya’s
view. As Mafuya was watching Stuma, the back door of the car behind the
driver opened. A third man who was short and dark and had a firearm, emerged.
As Mafuya was looking at this third person, a shot went off in Stuma’s
direction. The car was either a Yaris or a Kia. He could not see the colour. The
police arrived about ten minutes after the shooting. Mafuya was taken to Blue
Downs to point out the clothes he had seen. The clothes worn by the driver and
passenger were taken out of a drawer . He pointed out the t -shirt and the navy
shorts.
[18] Counsel for Accused1 cross-examined Mafuya about the clothing and the
car used by the perpetrators . He was able to see the T-shirt the driver was
wearing. He pointed out the navy T -shirt and navy shorts with stripes worn by
one of the passengers, and the driver’s yellow T-shirt at the clothing parade.
There were no other items of clothing that were shown to him. He testified that
the deceased wore a yellow Kaizer Chiefs T-shirt. The colour of the car was
navy blue to black. Mafuya’s answers were long -winded and he appeared to be
evasive in answering some of the questions put to him by Counsel.
[19] Mbonele Sonamzi (‘Sonamzi’), a Sergeant and member of the SAPS for
19 years, attended this crime scene . He was on patrol in his van. There was a
complaint that someone was shot. A few minutes later , another shooting was
reported in the area. He attended the second complaint in his area. He saw two
black males when he arrived on the scene. One was on the ground , bleeding.
The other was standing. He asked the person standing about what had happened.
The person was accompanying the other , who was shot. A black Toyota Yaris
had appeared. The one on the ground was busy on his phone. The driver of the
Yaris asked for t he phone. A passenger in the car got out of the vehicle and
walked to the front of the car. He had a firearm. The person seated behind the
driver took the phone, got back into the car and the car left.
[20] Sonamzi noticed the person on the ground was bleedin g. He called the
ambulance for assistance. He saw a bullet casing near the person. He heard over
the police radio the same description of the people who were involved in the
other crime scene. The persons , African males , were in a black Yaris. The
witness on the scene was unable to take down the number plate of the Yaris.
Sonamzi was not cross-examined by either Counsel for the accused.
[21] The evidence of Mr Mafuya , despite the shortcomings in rendering it,
provides a clear and credible account of the fatal shooting of the police officer,
Stuma. He observed the incident at close range under adequate street lighting
and described three perpetrators emerging from a vehicle, two of whom were
armed. His account of the struggle over the cellphone, the roles played by each
perpetrator, and the firing of the fatal shot was coherent and consistent.
Although he did not identify the accused by face, he gave detailed descriptions
of the clothing worn by the perpetrators . He later point ed out items of clothing
at the police station that correspond closely with those found in the possession
of the accused at the time of their arrest. The Court raised the manner wherein
the pointing out of clothing at the purported clothing parade was conducted and
warned that this type of evidence was fatally flawed. Mafuya’s evidence was
consistent with Sergeant Sonamzi’s unchallenged testimony. Sonamzi provided
further evidence on the car used by the perpetrators as well as its occupants.
IDAHOFF SUPERETTE ROBBERY
SERGEANT BALINGA
[22] Sergeant Balinga (‘Balinga’) attended to this crime scene. On 26
November 2019, he was doing patrols in Voortrekker Road. A group of Somalis
stopped him at Barnard Street. He was informed that three armed men robbed
the Idahoff superette . They took cash, cellphones and cigarettes. The men
robbed a customer of his iPhone and fled in a blue car. Balinga was told that the
iPhone could be tracked. A bystander was asked to track the phone. He
contacted the Flying Squad to scan the area and continued monitoring the police
radio which reported the sighting of a blue car standing at a corner near the
superette when the robbery occurred. Counsel for Accused 1did not cross -
examine the witness. Counsel for Accused 2 elicited from Balinga that he did
not see any video footage from the shop or hear about it until hours after th e
robbery had occurred.
[23] Although the accused were discharged under s 174 on the counts
relating to the Idahoff superette robbery, the evidence of Sergeant Balinga
remains relevant insofar as it establishes certain objective and uncontested facts.
His testimony confirmed that the superette had been robbed by three armed
men, that cash, cigarettes and several cellphones were taken, and that an iPhone
belonging to one of the victims was capable of being tracked. He was informed
at the scene that the tracking function had been activat ed and that other officers
had observed, on the store’s video footage, a blue vehicle positioned at the
corner of the street. While Balinga did not personally view the footage , and his
evidence cannot be used to establish the identity of the perpetrators o r to prove
the Idahoff counts, it reliably establishes the fact of the robbery and the theft of
the iPhone. His evidence was largely unchallenged and provides contextual
support for the later recovery of the stolen iPhone in the possession of the
accused. It therefore forms part of the broader circumstantial framework
relevant to the remaining counts, without reviving the charges on which the
accused were discharged.
THE MFULENI ARREST
SERGEANT TSILANA
[24] Counts 13 and 14 covered this crime scene . Sergeant Lubalo Tsilana
(‘Tsilana’), who was a constable at all times material to this case, was working
with his partner, Constable Cetwa, in Bellville on the morning of 27 November
2019. They received a complaint that armed men were robbing a shop. Someone
was shot in the shop , and phones, cigarettes , a nd money were taken. The
information was that a blue vehicle was involved, and the police were tracking a
cellphone that was taken from one of the victims on the scene. The vehicle was
tracked moving from Bellville to Mfuleni.
[25] The police officers followed the coordinates provided and were informed
that the car had come to a halt. They saw the motor vehicle in the vicinity of the
fire station at Mfuleni. The car did not have registration plates, and the windows
were tinted. They stood behind the vehicle and approached the car. Tsilana went
to the driver’s side and Cetwa to the passenger side. There were two young men
in the vehicle. When the driver saw Tsilana, he wanted to get out and run.
Tsilana held the driver against the car. He felt a firearm on the driver’s left
waist. The firearm was not in a holster but was placed in the driver’s pants. He
called out to his partner to come and assist him in handcuffing the driver.
[26] The two police officer s then went to the passenger side. He saw many
cellphones on the back seat and the floor of the vehicle. The passenger also had
a firearm on his right waist. The firearm found on the passenger had its numbers
filed off. The serial number on the driver’s firearm was intact. They also found
live rounds in the car. The driver identified himself as Zola Golela, and the
passenger as Cebo Soboyise . In addition to the cellphones, t hey found
cigarettes, live ammunition, and money in the car. The driver said that there was
a third person who was involved. Golela and Soboyise were arguing with each
other. Tsilana asked Golela if he reported his vehicle stolen. The question
elicited a negative response from Golela.
[27] The Yaris was driven to the police station by Cetwa . Tsilana took the
[27] The Yaris was driven to the police station by Cetwa . Tsilana took the
Accused to Bellville police station . Other police officers arrived at the scene
when they were leaving. Apart from the iPhone that was tracked, another phone
was ringing incessantly. A police officer was at the end of that phone when it
was answered. The person calling arrived at the police station with other
personnel. The phone they called belonged to a police officer. During cross -
examination, Tsilana corrected his testimony about where the Accused were
taken after their arrest. The Accused were detained at Mfuleni but taken to other
police stations.
[28] Tsilana was questioned by both Counsel on behalf of the Accused . The
versions of the Accused that were put to Tsilana will be dealt with under the
content of their testimonies. On questions from the Court, Tsilana stated that he
had been working since 18h00 on the evening of 26 November 2019. He works
for the Western Cape Flying Squad. He had been working at the Flying Squad
for seven years. They heard about the Idahoff superette robbery on the radio and
enquired about it. They were given the description of the type of motor vehicle
that was used in the robbery. They were informed that the suspects were armed
and that items had been taken from the shop. They were also informed that a
shooting had occurred. The police on the scene were speaking with the
controller. The time of the arrest was half past one. From the time he said he
was going to respond to the time he effected the arrest was less than one hour.
There were lights at the place of arrest. There were empty alcohol bottles in the
car.
CONSTABLE SIBULELE CETWA
[29] Constable Sibulele Cetwa (‘Cetwa’) was the partner of Tsilana and
worked in the Flying Squad . They were informed that an iPhone stolen at
Idahoff Superette was being tracked to locate it. They were also informed that a
Blue Toyota Yaris was implicated. He and his partner answered the call and
followed the coordinates of a stolen iPhone that were provided to them. They
followed the coordinates from Voortrekker Road to Van Riebeeck Road, and
then Spine Road to Mfuleni. They came across a blue Yaris at a standstill
without number plates. The Accused were arrested near the Mfuleni fire station.
[30] Cetwa went to the passenger side. Tsilana went to the driver’s side. One
of the suspects tried to escape when they opened the doors. The passenger
remained inside the vehicle. They saw cellphones, ciga rettes, and cash in the
car. The suspects were arrested as they could not explain the items in the car
and the gun that had its serial number filed off. They were taken to Mfuleni
police station. There was a cellphone that was constantly ringing. It was the
detectives from another case who were looking for the firearm. The suspects
had to be taken to the Bellville police station that day. Both suspects had
firearms. He noticed the cellphones , cigarettes and the cash when the y opened
the vehicle. The occupant in the car wanted to open the door simultaneously. On
his side, the passenger side, the occupant was assisting in opening the door.
Cetwa confirmed that he was carrying a rifle that day.
[31] After the arrest Tsilana, Cetwa, and the Accused were all on the
passenger side. Cetwa noticed the firearm in the passenger's seat when he was
taken out of the vehicle. He could not remember what answer the Accused gave
when they were asked about the items seen in the car. The Accused were driven
to the police station for fingerprints in police vehicles. The Yaris was driven to
the police station. He was unsure who drove the Yaris. They spent about twenty
minutes at the scene in Mfuleni. Other police arrived about ten minutes after
them.
[32] Counsel for accused 1 cross -examined Cetwa. He could not confirm
Tsilana’s testimony that the passenger had his forehead on the dashboard when
the Accused were confronted. The passenger had opened his side of the door.
When Tsilana opened the driver’s door, he shouted ‘firearm’. The firearm was
on the suspect's waist. The driver indicated that the vehicle belonged to him.
Tsilana was the one who took out both suspects from the vehicle. The firearms
were placed in exhibit zippy bags after Tsilana had worn gloves. Tsilana
holstered his firearm after taking out the driver. The second firearm was on the
passenger’s waist. Its serial number was filed off.
[33] Counsel for Accused1 put his version of events to the Cetwa on the
following morning of his testimony . The witness , Cetwa, was more rela xed.
Accused 1 was sitting in the back of the vehicle. The witness denied this, stating
that both accused were in front. He did not mention the live rounds of
ammunition. He noticed it when the vehicle was searched. The live rounds were
between the seats. The two suspects were arguing and mumbling. He could not
hear what they were saying. Accused 1 denied that they were arguing. He could
not remember how the suspects were taken to Mfuleni police station.
[34] Cetwa did not know about the search conducted at Ac cused 1’s home.
The Yaris was driven to Mfuleni, so it could not have run out of fuel. It was put
to this witness that Accused1’s version was that the driver, i.e., Accused 2, had
lost his vehicle earlier in the day and had just recovered it. The driver as ked
friends to assist with fuel. Accus ed 1 had stepped out of the vehicle in Mfuleni
to urinate. Accused 1 returned to the vehicle and sat in the backseat. He checked
out the cellphones to see what type they were. He asked the driver about the
cellphones. The driver told him that he had found the cellphones in the car when
he recovered the car. It was the first time he had seen a gun like that , and he
placed it back where he had found it. There was no need for Accused 1 to jump
or run away.
[35] Counsel for Accused 2 cross-examined Cetwa. She pointed out the
discrepancies in his version as compared to Tsilana , especially on whether
accused 1 was sleeping with his forehead on the dashboard . The witness said
that he could n ot answer for Tsilana. The second accused’s version was put to
this witness. His car was stolen on 26 November 2019 and recovered on 27
November 2019. When confronted with the affidavit that Accused 2 had
obtained from the Philippi East police station, the witness testified that he was
not an expert in verifying whether the affidavit was legitimate or not. Accused 2
was outside the car , urinating when the police arrived. The witness denied this.
The witness tended to be aggressive and was, overall, a poor w itness. He could
not account for what Tsilana saw.
[36] Despite the reservations the Court had about how Cetwa testified , the
evidence of Sergeant Tsilana and Constable Cetwa regarding the arrest of the
accused was largely consistent on the material aspects a nd provides a
compelling account of the circumstances in which the accused were
apprehended. Acting on information that armed suspects in a blue vehicle were
being tracked through a stolen iPhone, the officers located a blue car without
registration plates in Mfuleni. Upon approaching the vehicle, Accused 1
attempted to flee, and Tsilana felt a firearm concealed in his waistband. A
second firearm, with its serial number obliterated, was recovered from Accused
2. The officers observed numerous cellphones, ci garettes, cash, and live
ammunition inside the vehicle. One of the phones was the iPhone being tracked
from the Idahoff robbery, and another belonged to the deceased police officer.
The accused were arguing about a “third person,” and were unable to provid e
any explanation for the presence of the stolen items or the firearms.
[37] Although Cetwa differed from Tsilana on minor peripheral details, such
as the way the accused were transported after arrest, these discrepancies do not
detract from the reliability of their evidence on the central issues. The objective
detract from the reliability of their evidence on the central issues. The objective
circumstances of the arrest corroborated their testimony . The arrest evidence ,
therefore, forms a significant component of the circumstantial chain linking the
accused to the series of offences under consideration.
[38] Both Sergeant Tsilana and Constable Cetwa, the arresting officers ,
provided credible evidence about how the Accused were tracked through the
iPhone stolen at the Idahoff superette and arrested in Mfuleni. Their account of
how the arrest and the subsequent detention occurred is accepted by the Court.
OTHER STATE WITNESSES
SERGEANT MNYAMANA
[39] Sergeant Mnyamana, a detective with the Hawks, became involved in
these cases as a police officer, Stuma was killed. He adopted the role of overall
investigating officer as the threads common to the cases , in particular, the
vehicle implicated, became apparent. His testimony concerned accounts of the
investigations conducted and the information provided by the Accused , and the
police officers assigned to the cases. Mnyamana oversaw the collation of
forensic evidence and reports under the five dockets.
[40] Mnyamana spoke to the deceased police officer’s girlfriend and returned
the cellphone of the deceased to her. He viewed the video footage of the liquor
store robbery and concluded that the Accused were the persons depicted in the
footage. He conducted a clothing parade by asking Nondlozi and Mafuya to
view four items of clothing obtained from the Accused. Counsel were in
agreement with the Court that the evidence relating to this clothing parade was
problematic as it was highly suggestive and the procedure used was fatally
flawed. The Court rules, to the extent that it is necessary, that the clothing
parade evidence is inadmissible.
[41] Mnyamana testified that he secured the Yaris for further investigations.
Accused 2 told him that the car was stolen from his house and Accused 2 went
searching for the vehicle on foot. Mnyamana pursued the information provided
by Accused 2 that he had reported the theft of his vehicle to Philippi East police
station. Mnyamana’s enquiries at the police station revealed that no report of the
stolen vehicle existed. He also established that Accused 2 was not at work when
the crimes occurred. He enquired about the 26 November 2019 and not about
the 25 November 2019. Mnyamana spoke to Accused2’s wife who declined any
involvement in the investigation of the matter. Accused 2 told him about a third
person who was in their company and who had gone for assistance when the
Accused were arrested. Mnyamana also observed a third person on the liquor
store footage and was informed that there were three perpetrators involved in
the fatal shooting of the police officer. Mnyamana was unable to find the third
person. He was also unable to track the complainants in the Idahoff superette
robbery.
[42] Mnyamana’s lassitude , his dependence on assumptions , and manner in
conducting procedures and in investigating the cases was exposed in cross -
examination by Counsel for Accused 1 . Counsel for Accused 2 questioned
Mnyamana about the stolen vehicle report and his conclusions from observing
the liquor store video footage. Both Counsel for the defence pursued their
Clients assertions that they were assaulted after arrest . Counsel for Accused 2
contested Mnyamana’s testimony that Accused 2 had used public transport to
go to work and to the beach at Hermanus , and that a bag had been found in her
Client’s car. Counsel interrogated Mnyamana about his testimony that a Yaris
was seen arriving and leaving the scene at the liquor store. Mnyamana
confirmed that he did not seek further clarity from his informant about the
Yaris.
[43] The evidence of the investigating officer, Sergeant Mnyamana, w as not
reliable relating to the content of what was conveyed to him by the Accused and
how he pursued those leads. The State attributed Mnyamana’s testimony to
confusion, The Court does not agree. He made too many assumptions about the
investigation. The clothing identification parade was significantly flawed.
Counsel for Accused 1was less generous about the evaluation of Mnyamana’s
evidence. She submitted that the witness extended the truth and was creative
with procedures to secure the Accuseds’ convictions. The Court, subject to the
reservations already expressed, accepts Mnyamana’s and Cetwa’s evidence
where there is support and corroboration from other witnesses e.g., the scientific
and objective evidence.
MATHAPELO JOSEPHINE MINI
[44] Mathhapelo Josephine Mini (‘Mini’) is an employee of SAPS based at the
Local Criminal Record Centre. She is a videographer and is currently a
fingerprint expert. She has been at the LCRC for sixteen years. She was called
to the Mfuleni police station to perform a prime residue test on the Accused as
well as to take photos of items. She used a special kit to check for gunpowder
on the hands of the Accused. The kit comprised blue and red magnetic objects
like wands that lift gunpowder from a person who has allegedly discharged a
firearm, optimally within two hours of them doing so.
[45] The Accused were in the boardroom of the police station. She
photographed Soboyise and Golela and their hands. She swept the red magnetic
wand over the Accused’s right hand and the blue magnetic wand over the left
hand. She placed the sample in the kit box and sealed the box before placing it
in a forensic bag. She performed the collection on each of the Accused , and
their samples were placed in different bags . She also took photographs of the
exhibit bags. The prime residue samples were sent to Pretoria. Mini also
photographed the two firearms and eight cellphones . She concentrated on the
prime residue test and not on the touch DNA test.7
[46] Under cross-examination, Mini confirmed that she is not a forensic
analyst. Her task was limited to collecting residue samples and taking
photographs. She acknowledged that any incorrect step in the collection of
prime residue samples can contaminate samples. She did not establish how long
after the incident she collected the samples. She did ask but did not write it
down. It was put to her that the al leged incident occurred after midnight. Mini
replied that the time frame was still valid. The sample was taken from Accused
1 at 03h25 on 27 November 2019. If the two-hour time limit were exceeded, she
would not conduct the tests. The two-hour period would mean that the powder
would still be available on a suspect’s hand. The residue diminishes with time.
She was asked whether the Accused were handcuffed, searched , or touched by
the police , or transported in a police vehicle . Mini had no idea about these
aspects. She could not exclude the possibility that the police touched the
Accused. She asked the Accused if they washed their hands. If the hands are
washed, the test could be negative.
[47] Mini was asked about secondary transfer and contamination. A transfer
can occur from handling other objects. Mini could not answer some of these
questions and repeated that her task was to process the tests. She wore gloves
from the kit during the collection process, which were new and unused. She did
not do collections on clothing. Her role end ed once she collected the samples.
She could not say whether anyone else handled the exhibits before they were
tested. She had no idea whether the laboratory excluded any possibility of
secondary transfer.
7 The State did not lead any evidence about the touch DNA test performed on the Accused.
[48] It was put to Mini that Accused 1 was sitting in the motor vehicle when
he touched an item in the backseat pocket. As he pulled it out, he saw it was a
firearm. It was the first time he saw a firearm that looked like the one he pulled
out. Mini replied that there would be a likelihood of secondary transfer in these
circumstances. If there was a prime residue on that gun, it could cause
contamination. On questioning from the Court, Mini replied that an analyst
would be the expert to answer questions on secondary transfer and
contamination of samples.
BIANCA ANTHONY
[49] Warrant Officer Bianca Anthony is employed as a police officer at the
Plattekloof Forensics Laboratory. She has a Bachelor's, Honours, and Master’s
degree in Biotechnology. She is a ballistics analyst. Her work includes the
microscopic study of the indentations on firearms and bullets , and testing of
firearm mechanism functioning.
[50] She was requested to reexamine the case after the initial analyst, Warrant
Officer Hoffman, was no longer involved in the case. She did not do the firearm
mechanism examination. She had access to the reports compiled by her
colleague. She received two 9mm Parabellum calibre fired cartridge cases from
the liquor store robbery, one 9mm fixed cartridge case from the Idahoff
superette robbery, one 9mm fixed cartridge from Delft case 902/1 , three 9mm
Parabellum fired cartridge cases, one fired bullet jacket of unknown calibre, one
bullet case of unknown calibre, and one 9mm calibre fired bullet. She received a
bag containing one 9mm Parabellum Walther model semi-automatic pistol with
its serial number erased, and one magazine. She also received three 9mm
Parabellum unfired cartridge cases, one Parabellum character Star semi -
automatic pistol with a serial number on it and two magazines. She also
received five 9mm Parabellum unfired cartridges.
[51] She was asked to do comparison microscopy of the fired bullets across
the dockets. She had to do inter -docket comparison. She fired a test cartridge
and g ot a cartridge case and bullets. She compared the exhibit cartridge case
found at the crime scene. She can determine whether a firearm fired that bullet
at the crime scene. She found that the Star pistol was not involved in any of the
cases. Both firearms functioned properly. Another analyst usually confirms a
match between the firearm and the cartridge . The Walther pistol with serial
number erased matched the cartridge retri eved from the Harare liquor store
robbery. There w as a third firearm that was used. The Walther pistol was
involved in the liquor store robbery, the shooting of the two brothers and the
superette robbery. The third firearm involved in the shooting of the p olice
officer. A cartridge used in the third firearm was also found at the liquor store
robbery.
[52] Under cross-examination, Anthony testified that the laboratory does not
accept errors affecting the chain of custody . If an exhibit is incorrectly marked,
it is not accepted until the investigating officer fixes the error. If a cartridge case
is bloody, it could affect the markings.
CAPTAIN JACOB MUSA MWALE
[53] Captain Jacob Musa Mwale (‘Mwale’) is employed by the Direct orate of
Priority Crimes Unit (DPCU) in the SAPS. He is a Captain and is based in
Silverton, Pretoria. He conducts evidential communication analysis on
cellphones. He has been in the employ of SAPS for twenty-three years and
fourteen years with the DPCU . He has a bachelor’s degree in policing. He has
received training in various aspects of his expertise, namely, cellphone analysis.
[54] The investigating officer, Mnyamana , requested Mwale to conduct an
evidential communication analysis . He analysed three cellphone numbers . He
was provided with the cellphone data by the investigating officer. Mnyamana
identified the user of the first number as Accused 2, the seco nd number as that
of deceased police officer Stuma, and the third as that of Accused 1. Mwale was
requested to establish any connection , i.e., calls made and received between the
identified targets, to identify cellphone towers activated by the numbers used by
the identified targets , and to establish if the identified cellphones c ould have
been within the area of the crime scenes. He studied the cellphone billings
associated with the cellphone numbers. He communicated with the investigating
officer after he received the request and visited the crime scenes to determine
which cellphone towers cover the proximity of the scenes . He obtained the ir
GPS coordinates on 11 July 2023. He also obtained clarity from Mnyamana
about what had to be analysed.
[55] The tower coordinates were present on the cellphone billings. He could
not place a particular cellphone in a scene but could match a phone to a tower.
A cellphone activates a tower for outgoing and incoming calls , including short
message services (SMS’s) . If the cellphone is not activated, it cannot trigger a
tower. A cellphone can activate different towers in one area. This depends upon
the population using the tower.
[56] After analysing the billings linked to each cellphone number, Mwale
drew his conclusions. The number linked to Accused 2 indicated movement of
this cellphone between 02:40:54 and 08:34:26 on 26 November 2019 . This
timeframe was not within the timeframe material to the commission of the
crimes. The cellphone number of the deceased police officer indicated that it
was in the vicinity of the crime scene between 21:20:28 and 21:26:00 before his
murder on 26 November 2019.
[57] The cellphone number linked to Accused 1 activated certain towers in
sequence between 08:17:08 and 22:38: 00 on 26 November 2019. They include
towers in the Philippi area, Nyanga and Mfuleni. Mwale ’s analysis placed this
number within 0.92km of the liquor store robbery at 16:17:19, 8.43km radius of
the Idahoff superette at 22:23:22 on 26 November 2019, within 2.67km radius
of the crime scene involving the murder of the police officer at 00: 37:22, and
within 4.69 km radius at 00:37:22, the same time on 27 November 2019 where
the two brothers were fatally shot . The number was also placed within 1km of
the scene where the Accused were arrested between 02:06:08 and 08:36:01 on
27 November 2019.
[58] Mwale was cross-examined on behalf of Accused 1. Counsel asked if
several persons were using a particular tower, would a backup tower take the
load? Mwale agreed, saying that the only real impediments to activation of a
tower would be where there is no coverage or if there are impediments in the
landscape. A cellphone tower would be activated onl y if there is cellphone
activity. It does not tell what the call was about . Once there is a connection, the
nearest tower to the device is triggered. The analysis does not say who is using
the phone. RICA information tells who the user of the SIM Card is.
[59] Accused 1’s version , put to Mwale, was that he could not remember the
number he was using at times material to this case. He did not have a cellphone
on him that day. Mwale testified that he verified the alleged users of the
cellphones. He did not vi sit the residences of the Accused or obtain the
coordinates of their addresses. Mwale testified that if he were tasked to do the
home addresses, he would have been able to say if the towers were triggered
from the homes of the Accused.
[60] Counsel for Accused 2 posed questions to Mwale. Mwale was asked if all
towers are open and operating, can any tower can pick up a cellphone ? He
answered by stating that if all were active, the closest tower would pick up the
cellphone activation. As for th e analysis of the cellphone billings relating to
Accused 2, they relate to times not material to the commission of the crimes. He
was employed as a site supervisor who had to be on the move to visit sites .
Mwale agreed that a cellphone can be picked up if it is moving in the vicinity of
a tower.
[61] On re-examination, Mwale repeated that a tower has three sections. It
indicates on which side a call is made or received. Activation occurs across
cellphone towers that overlap.
LIEUTENANT COLONEL VISHALAN MOODLEY
[62] Moodley has been with the SAPS for eleven years. He is a Lieutenant
Colonel employed as a Forensic Analyst at the Forensic Science Laboratory in
Silverton, Pretoria. He has a BSc degree.
[63] He testified that the laboratory receives the primary residue kit in a bag.
The name of the suspect can be included in the kit. He received two kits in this
matter relating to two persons. The names were provided, namely C Soboyise
and Z Golela as accused 1 and accused 2 , respectively. His testing revealed
residue on the right hand of Accused 1. He testified that 25% of persons would
test positive in three instances, i.e., if they discharged a firearm, if they were
within about 2m of a firearm being discharged, and if there was secondary
transfer arising from the recent handling of a discharged firearm. Moodley
testified that the test results are non -specific as they could not identify the
person who discharged the firearm or the mode of transfer of residue to the
hand, or whether transfer has occurred in other ways. The optimal time to obtain
a positive result between shooting and the sample taken is within 2.5 hours .
After this period, the chances of a positive result reduce.
[64] Moodley was cross-examined on behalf of Accused 1. He accepted that
residue can be transferred if a police officer has discharged a firearm and then
handcuffed a suspect. Counsel placed Accused 1 ‘s version on record, i.e., that
he accompanied Accused 2 to Mfuleni and the vehicle ran out of petrol.
Accused 1 left the vehicle to urinate. When he returned to the vehicle, he sat in
the backseat. He noticed a n object protruding from the back seat pocket. Out of
curiosity, he took the item out. He learnt it was a gun. He checked the gun out ,
as he had not seen that particular type of gun. When he was done, he returned it
to the seat pocket. Moodley was asked if the gun was discharged earlier ; could
there be chances of gun residue transfer? Moodley agreed. Moodley agreed that
the test for residue does not tell when , how, or from whom the firearm particles
were deposited . Nor does it say who fired the firearm , who possessed the
firearm or link a suspect to a crime scene. Counsel for Accused 2 did not cross-
examine Moodley.
[65] In answer to a question posed by the Court, Moodley testified that the test
done is qualitative and not quantitative. He has encountered cases where a
person is found with residue on one hand only.
CAPTAIN TOBIAS ALLIES
[66] Captain Tobias Allies (‘Allies’) has been in the employ of SAPS for forty
years. He was employed at Philippi East police station in November 2019. He is
a support commander of VISPOL, the visible policing arm of SAPS. He
testified that after a complaint of a stolen vehicle is received at the police
station, the Complainant must provide the papers of the specific vehicle and
establish whether he is the legal or registered owner. He must provide the
registration number, engine number and vehicle identification number ( VIN
number). The copy of the papers is filed in the docket. The Complainant
provides the date, time, and location where the vehicle was stolen. The police
officer at the charge desk assists the complainant. SAPS is respo nsible for
writing down the statement with all information provided by the Complainant.
After the affidavit is completed, it is signed by the Complainant. The SAPS
officer who assisted the Complainant then places an oath stamp on the
document and signs it after the Complainant has taken the oath.
[67] On 8 January 2021, Allies was approached by Mnyamana from the DPCI.
Mnyamana requested him to check if a case of theft of a motor vehicle was
reported between February and March 2019. Mnyamana provided him with a
surname and an identity number. Allies logged onto the system but could find
no case reported. He only checked February and March 2019.
[68] Counsel for Accused 2 presented the affidavit deposed to by Golela.
Allies looked at the affidavit and identified the flaws in the affidavit. The name
of the police station was spelt incorrectly on the stamp. Allies testified that if
the stamp is faulty, the supply chain will pick it up immediately and withdraw
the stamp. The station will not receive a stamp that is faulty. Allies stated that
there was no report made to him of the pur chase of a faulty stamp. The ink
stamp pertaining to the oath and appearing at the foot of the affidavit is not
placed on the affidavit page. He testified that two police officers had signed the
part of the affidavit requiring commissioning. The affidavit is signed by the
police officer who took the statement and no one else. The format of the words
used in the part where the affidavit is supposed to be commissioned was
incorrect. It did not have an option for he or she.
[69] The station used different types of affidavits. He could not dispute that
Accused 2 acquired the affidavit from Philippi East police station. It was put on
behalf of Accused 2 that the car’s papers were left in the Eastern Cape. The
police officer assisting him told him to make an aff idavit anyway. Allies stated
that a case like this can be opened. Allies testified that the persal number
reflected against one of the police officers who had signed the affidavit,
Sergeant Adams was incomplete. He concluded after considering all factors,
that the affidavit was not authentic. It is the member’s duty to give a case
number. The system will automatically send an SMS to the cell number of the
Complainant. The system gives the names of all cases under a person’s na me,
whether the investigating officer requested a specified period of February or
March 2019. It was put on behalf of Accused 2 that he went to the Philippi East
police station. He was assisted with the affidavit by one of the SAPS officers.
Allies replied that i t is unusual to give the original of an affidavit to the
Complainant unless the Complainant asks for it. It depends upon what the
Complainant wants to do with the affidavit.
[70] The evidence of Mini, Anthony, Moodley, Mwala, and Allies was
reliable, credible, consistent and with a high probative value . The probative
value of their evidence shall be analysed later in this judgment. They withstood
cross-examination in instances where cross -examination was conducted, and
there were few, if any, contradictions. The State closed its case, and the defence
raised their section 174 applications. The outcome of the section 174 application
has been alluded to earlier in this judgment. The Defence then led the evidence
of the Accused.
ACCUSED 1
[71] Accused 1 is 34 years old. He was 28 at the time the crimes were
committed. He lived in Crossroads but has living quarters in Site B,
Khayelitsha. He completed grade 12 at school in 2013. He has two children, a
son in grade 11 and a daughter. He saw his daughter in 2019 and his son at the
beginning of 2025. His children are from different mothers. He was last
employed in a factory in 2018. He had since and up to the time of his arrest,
sold meat , fish and alcohol at home. He lived with his mother, sister and
cousins. Soboyise testified that he spent a large part of the day of 26 November
2019 at home. He awoke at 09h00. He saw his partner off at the bus stop to get
her transport to work in Century City . At about 15h00 , he did his laundry . He
then l eft to buy two packs of Extreme cider at the liquor store . When he
returned, he sat with his laptop and watched movies. He assisted with the
cooking at about 19h00, ate at about 20h00 and then watched television till
22h00. His girlfriend, Talita, phoned and asked if she could spend the night with
him. He went to meet her at the bus stop. She got into bed as he sat on a camp
chair drinking his cider.
[72] At about midnight, he received a call from Golela. Golela told him that he
had lost his car but had found it. He was on his way to pick up Soboyise and
then go to Golela’s girlfriend in Mfuleni. He awoke Talita to inform her that he
was going to accompany Golela. She allowed him to go. Golela arrived and told
him that the car was found in Lus uko. On t heir way to Mfuleni, he teased
Golela for having a wife and simultaneously having a girlfriend. He met
Golela’s girlfriend once when Golela took lunch for her.
[73] Golela’s Yaris switched off in Mfuleni as it had run out of fuel. Soboyise
was seated in the front seat. He alighted from the vehicle to urinate. He returned
and sat in the back behind the driver’s seat. Whilst he was seated at the back, he
and sat in the back behind the driver’s seat. Whilst he was seated at the back, he
saw about seventeen cellphones on the back seat. Golela was outside the car
making a call. He did not get a chance to ask Golela about the cellphones. He
did not notice the cigarettes , ammunition, or money in the car. He also saw a
bulge in the pocket behind the driver’s seat , which was jutting out from the top
of the pocket. He reached in and took it out. It was a gun. He placed it back into
the seat pocket. The police arrived about four minutes later. The police officer
who approached him had a rifle in his right hand and opened the door with his
left hand. He did not try to escape. He was asked to get out of the car , which he
did with his hands behind his head. He lay down on his stomach and was
handcuffed. Golela was also handcuffed and lay on his stomach. Many police
officers were around.
[74] Soboyise testified that after his arrest, he was taken in a Toyota Fortuner
vehicle to Mfuleni police station , where they were placed on the floor in a
boardroom. The police questioned and assaulted them there. After sunrise, the
investigating officer, Mnyamana arrived. Soboyise stated that he was later taken
to his place of residence in Crossroads . The house was searched. He was
assaulted by the police and bitten by thei r dogs on both his thighs. The police
found his identity document , which showed his site B address . The entourage
went to Site B and searched the house , after which they returned to Mfuleni
police station. Mnyamana arrived and took them to Bellville police station cells.
He made a first appearance at the Blue Downs court. He was subsequently
informed that he was charged with the murder s of the Zwakala brothers and the
police officer.
[75] Accused 1 denied any part in the murder and robberies. He denied that
the cellphone number investigated was his. He did not travel to Harare, the
vicinity of the liquor store or Delft , the murder crime scenes on that day. He
testified that there was no third person with them that night.
[76] Under cross-examination by the State, Accused 1 indicated that he met
Golela at the local gymnasium in Crossroads. He confirmed that Golela owned
a blue Toyota Yaris. Golela’s older brother was present with them sometimes.
He met Golela about four months before they were arrested. They
communicated regularly by cellphone . He owned a Huawei P30 handset.
Soboyise communicated with Golela on 24 November 2019 when he returned
from the Eastern Cape. His next communication w ith Golela occurred at
midnight on 26 November 2019. He did not carry his cellphone when he
accompanied Golela on that night as he had left it at home. They did not stop on
the way to Mfuleni. Soboyise testified that he did not know Delft and was taken
to task on this answer. Golela picked him at about midnight on 26 November
2019. Soboyise was unable to account for the time that had elapsed since Golela
picked him up and the time of his arrest, about one and a half hours later.
Soboyise was asked to explain the gunshot residue on his right hand. He could
not explain how the gun used to ki ll the Zwakal a brothers was in Golela’s car.
He denied ever handling a firearm and did not own one.
[77] Soboyise was then taken through the inconsistencies in the version put on
his behalf to the State witnesses , as well as between his examination in chief
and cross-examination. He took out the firearm because he was curious about it.
It was put to Tsilana that it was the first time he had seen that type of firearm.
Accused 1 suggested that maybe it was a mistake. He did not remember asking
Golela abou t the gun. It was put to Tsilana that Soboyise had left home that
night with his cellphone and R370 in his pocket. He denied telling his advocate
that he had left home with his cellphone and cash.
[78] When he testified in chief , Soboyise told the court that he went to the
backseat behind the driver after he had relieved himself. His Counsel put it to
backseat behind the driver after he had relieved himself. His Counsel put it to
Tsilana that he had got into the backseat behind the passenger seat. He denied
telling his advocate that he returned to the back seat behind the passenger seat.
Soboyise told the court that he asked Golela about the cellphones. When he
testified in chief, he stated that he did not get to ask Golela about the cellphones
or the firearm. He could not explain why he testified in chief that he did not get
to ask Golela about the cellphones and the firearm. During examination in chief,
Soboyise testified that he was not searched. It was put to Tsilana that he was
told to lie on th e ground, handcuffed, while facing down and searched. He did
not remember saying he was not searched. He was reminded that this evidence
was given two days prior to his being cross-examined on it.
[79] Soboyise denied any knowledge of the cellphone number that was
analysed by Mwala . He was reminded that it was never put to Captain Mwela
that he did not know this number. Soboyise replied that he had told his advocate
he did not know the number . It was conveyed on Soboyise’s behalf that he
could not remember the cellphone number he used on that day. He only
remembered that he did not have a cellphone on him that day. It was put to
Soboyise that he distanced himself from the cellphone because it activated the
cellphone towers near the crime sce nes at Makana, Delft, and the Idahoff
superette. His stock answer to the inconsistencies highlighted in his testimony
was that he did not know about those occurrences. It was suggested to Soboyise
that it was highly unlikely that his cellphone would have a ctivated the towers if
it were left at home. Soboyise testified that he had heard of the iPhone that was
tracked and the deceased police officer’s cellphone found in Golela’s car for the
first time in Court.
[80] Soboyise was cross-examined on the clothes he wore when he was
arrested. He confirmed that he wore a navy-blue t-shirt which had a distinctive
colourful pattern of four squares and further patterns within the squares. The t -
colourful pattern of four squares and further patterns within the squares. The t -
shirt also had a circle and writing just above the right co rner (as the Court
looked at it) of the four squares and a signature below the foot of the four
squares. He wore blue striped shorts with a distinctive waveform pattern upon
it. He was then shown photos of one of the suspects caught on the footage in
the liquor store robbery. That person had a similar if not exact T-shirt and shorts
on as Soboyise did when he was arrested. The person captured on the liquor
store footage also had a crème wide brimmed hat and a watch on his left wrist.
In the video footage the suspect carried something in his right hand. It was put
to Soboyise that the person captured on the liquor store footage was him.
Soboyise denied this by suggesting that he di d not have a hat on in the photo
taken after his arrest.
ACCUSED 2
[81] Golela is 39 years old. He left school in grade 9. He is a grade A certified
security officer. Golela worked as a mobile security supervisor at the time of his
arrest. He is one of nine children and has five of his own. He is married and is
the family breadwinner.
[82] On 26 November 2019 , he returned from work after the shift ended at
04h00. He tried to sleep, but it was hot. He took his family and the neighbour’s
to Strandfontein beach at about 12-13h00. He left the beach at about 15-16h00,
describing the time as sunset. On his way home, he stopped at a mall to buy
liquor. He also bought something for his wife to coax her to give him
permission to go out later that evening for fun and enjoyment. He needed to
prepare himself for his night out and required his wife to assist him. He asked
the boys in the neighbourhood at about 17-18h00 to sweep and clean his car and
he readied himself for his night out.
[83] He left home in his Toyota Yaris. As he reached the exit from Polar Park,
the informal settlement where he lived, and in the vicinity of the Golden Arrow
bus depot on Eisleben Road, he noticed that his four-year-old daughter was
running behind the car. He stopped his car but left it idling at that spot, alighted
and took his daughter home. He berated his wife about leaving his daughter
unsupervised given the risk of children being run over by buses. When he
returned to the spot where he left his car, it was not there. He thought that it was
taken as a prank played on him by Zukisi Tamzu (‘Tamzu’) who is employed by
Golden Arrow as a bus driver. This was also the time that the Golden Arrow
employees left work. He saw Tamzu at the Golden Arrow gate . Tamzu denied
that he took the car. Golela aske d Tamzu to call Tamzu’s driver so that they
could go in search of the car.
[84] He went home and retrieved the car’s spare key and his firearm from his
home safe . He asked people whether they had seen his car , which was
distinctive in the township areas. It was a Yaris, blue in colour and had gold
coloured mag nesium alloy wheels. Tamzu and his driver arrived. He drove
Tamzu’s vehicle and began to search the popular hot spots where cars were
stripped. He went to twenty-three spots to search for his car during the night.
His search was, for the most part, to no avail. The search was long , and he had
to put petrol twice in Tamzu’s car. The car was stolen previously, in about
2018, and its speakers and sound system were removed before he retrieved it.
He did not want it to be stripped again.
[85] At some point , he asked Tamzu to drive as he made phone calls . When
they were on the verge of giving up the search for the Yaris at about midnight or
the early hours of the morning , after hours of searching, Tamzu spotted the car
with its lights on in the Luzuko area near a robot-controlled intersection. Tamzu
drove past the car to check if anyone was around. He made a U-turn and
stopped a distance away from the car. Both he and Tamzu alighted from the car
and approached cautiously. They are bot h trained security personnel and
received their security training together. They took precautions to avoid being
ambushed by the people who stole his car. He saw the car doors open. Shacks
surrounded the area . Whilst Tamzu searched around, he got into the car and
started it. Tamzu returned to his vehicle. Golela drove the car towards Lower
Crossroads. He stopped at a garage to fill petrol. He filled R50 of petrol in the
Yaris. Tamzu’s driver left as it was time for him to fetch staff from Cape Town.
Golela dropped Tamzu off at his home in Better Life township.
[86] After dropping Tamzu off at his home , and since the grace period he
obtained from his wife had not ended, he called Accused 1 to accompany him to
Mfuleni. Golela wanted to collect some money from his girlfriend . Soboyise
agreed and asked Golela to come around to his house. He got to Soboyise’s
house at about 01h00. Soboyise came out . After they spoke, Soboyise went
back into the house , reappeared and got into his car . He was he aded for
Mfuleni, which he estimated to be about forty minutes from Crossroads by car.
Golela estimated the time from where he f illed petrol in his car to Tam zu’s
house at between 7 and 10 minutes, and from Tamzu’s house to Soboyise ’s
home at about 15 minutes. He had spent about 5-6 minutes at the garage.
[87] Once they reached the circle in Mfuleni, Golela noticed that his car was
losing power and jerking. He thought that the problem could be one of three,
namely a spark plug problem, the battery or fuel. He stopped the car at the bus
stop in Mfuleni. He got out of the vehicle and began making calls to his friends
for help. He was busy making calls and urinating behind his car when the police
arrived. The police vehicle had its bright lights on. The police instructed him to
lie down before taking his gun, handcuffing and arresting him.
[88] Golela did not see where Soboyise was . Soboyise was in the car when
Golela exited to make phone calls. Golela was tak en to Mfuleni in one of the
Golela exited to make phone calls. Golela was tak en to Mfuleni in one of the
Flying Squad vehicles. He was asked about the killing of a police officer while
he was being assaulted at the police station by Tsilana, Cetwa and other police
officers. The lady who performed the gunpowder residue testing arrived about
three to four hours after he was arrested. He was then asked to point out where
he resides. He was taken there , and his house searched. The police found a
second magazine for his gun in a box. They did not show it to him. He saw it
when it was placed alongside his firearm and photographed at the police station.
[89] He saw the phones found in his car for the first time when Tsilana and
Cetwa pointed them out lying on a table at the police station , and after they had
returned from searching his home. He was taken to the cells when the police
went to search Soboyise’s house and later to Bellville police station. Tsilana and
fellow police officer Velani also assaulted him. Golela denied any knowledge of
the four crimes. He denied that he was on the video footage taken at the liquor
store robbery. When asked about Captain Allies view that the affidavit he
obtained from the Philippi East police station when he reported his car stolen ,
Golela replied that Allies was not an expert and did not work at the front desk of
the police station. Allies had only investigated reports for a different date. If the
Allies' investigation had nevertheless revealed all other cases involving him,
then there was no account of his a pplication for a firearm licence, for his home
safe, the previous theft of his vehicle, and the renewal of his firearm licence, as
well as his security competency certificate. He went to the Philippi police
station for all of these. Golela repeated that he obtained the affidavit at the
police station. He was advised to make a further affidavit explaining that his car
documents were in the Eastern Cape. He criticised the Captain for contradicting
himself over the police officer who had signed the affidavit.
[90] Golela testifie d that he worked the night shift on 2 5 November 2019.
[90] Golela testifie d that he worked the night shift on 2 5 November 2019.
Golela stressed that his car was blue. It was not black or a Kia. The car seen at
the liquor store robbery by the informer was black. Mafuya, the witness who
observed the police officer’s shooting could not say whether the car seen there
was a Kia or a Yaris. He knew nothing about the fire arm allegedly found in the
driver’s seat pocket in his car . He handed over six items of clothing , which
included a jacket and track suit pants that was not accounted for in the arrest
photographs.
[91] The State commented on Golela’s excellent memory he exhibited during
his examination in chief. Yet his memory for events began faltering under cross
examination. Golela did not consider Soboyise as a friend. Golela sought to
minimise the number of times he met Soboyise at the gymnasium. His stock
answer to questions relating to the frequency of his meetings with Soboyise or
his attendance at the gymnasium was that it depended on the days when he was
off work. Soboyise had been in his car about twice. The number of times he
contacted Soboyise telephonically depended on whether he needed something
from Soboyise. He had not introduced Soboyise to his wife or his girlfriend or
taken him to her . Golela had been to Soboyise’s home twice. He could not
remember whether Soboyise had been to his house. He had met Sinethembe,
Soboyise’s second girlfriend, in passing. He had never been to Soboyise’s home
in Site B. He denied that he met Soboyise about two to three times per week at
the gymnasium. He did not remember when he first met Soboyise. He had no
memory of the trip taken by Soboyise to the Eastern Cape before the crimes
were committed.
[92] Golela stated that his shift on 25 November began at about 1 6h00. He
was not sure when he got home on 26 November 20 19. He was not concerned
about leaving his car idling on the road at the township exit as he planned to
return immediately. He was also not concerned that his car had been stolen
previously. Golela disputed that his car was spotted at the four different crime
scenes. Golela was challenged about his statement to the police. In the affidavit,
he stated that he had left his car id ling as it had a starter problem. He had not
mentioned the starter problem while testifying. He used his spare key to start
the car after finding it with its lights on. He did not phone the police to inform
them he had recovered his car. He planned to sto p at the police station after he
had picked up Soboyise. Soboyise was not in the backseat of the vehicle. Golela
was asked about why he did not confront Tsilana or Cetwa about them
assaulting him when they testified.
[93] Golela was taken through the clothin g he wore as captured in the
photograph taken after his arrest. He confirmed that he wore a yellow T-shirt, a
black jacket, blue denimn shorts and a black cap. The cap he wore had a
distinctive design on the front incorporating a square with a cross in it and a
further design above it that looked like a crown. H is blue denimn pants with the
brown stitching on the front pocket was visible in the arrest photograph. Golela
was then taken through the video footage stills from the liquor store robbery.
One of the three suspects wore a cap with a similar distinctive design, yellow T-
shirt and blue denimn shorts as he did after his arrest . Golela denied that it was
him. in the liquor store robbery footage.
[94] Under cross-examination on behalf of Accused 1, Golela denied telling
Soboyise that he was going to his girlfriend when he called Soboyise. He only
told Soboyise this when he got to Soboyise’s home.
CUMULATIVE EVALUATION OF THE EVIDENCE
[95] The court now turns to the objective forensic and circumstantial evidence,
which forms the backbone of the State’s case on identity and linkage across the
various crime scenes. Unlike the direct evidence of the eyewitnesses, which
primarily established the occurrence and circumstances of the offences, the
evidence that follows concerns the scientific, technological, and physical
exhibits recovered during the investigation. This includes the clothing depicted
on the photographs of the Accused at the time of arrest as compared to the video
stills of the footage from the liquor store robbery, the ballistic comparisons, the
gunshot residue analysis, the cellphone tower and tracking data, the recovery of
stolen items, and the vehicle in which the accused were app rehended. The
relevant witnesses , the investigating officer (except for the reservations
expressed), the forensic experts, and the officers who collected and
photographed the exhibits testified clearly and consistently, and the court found
their evidence to be credible and reliable. The post ‑mortem reports, which were
admitted by the accused, confirm that the deceased in the respective counts died
of gunshot wounds.
[96] In assessing this body of evidence, the court must consider each
component individually for credibility and reliability and then evaluate the
cumulative effect of all the objective evidence. Circumstantial evidence must be
approached holistically: the question is not whether each item of evidence
proves guilt in isolation, but whether, when take n together, the totality of the
proved facts permits only one reasonable inference, namely that the accused
were the perpetrators of the offences. It is against this framework that the court
evaluates the clothing evidence, the ballistic findings, the guns hot residue
results, the cellphone tower investigations, the possession of stolen items, and
the vehicle the Accused occupied on arrest.
THE CLOTHING EVIDENCE
[97] The clothing worn by the Accused at the time of their arrest, as depicted
in the photographs, forms a significant and persuasive component of the
circumstantial evidence. The distinctive features of these garments correspond
closely with those visible on two of the perpetrators in the liquor store video
footage, and th ese similarities gain force when viewed alongside the other
objective evidence. The items worn by both accused were distinctive in several
respects. Accused 1 wore a T ‑shirt bearing four patterned squares and navy
shorts with a prominent waveform design. Accused 2 wore a y ellow T ‑shirt,
denim shorts with characteristic brown stitching on the external pockets, and a
cap displaying a striking square ‑cross and crown decal. These features were
clearly visible on two of the perpetrators in the liquor store video footage.
Although the footage is inconducive for f acial identification, the similarity
between the distinctive clothing worn by the perpetrators and that worn by the
accused shortly after the commission of the offences is compelling. The
patterns, stitching, and emblem ar e not generic or commonplace features,
despite the Accused’s protestations to the contrary, and the overall appearance
and build of the individuals in the footage align with those of the accused.
While clothing evidence must be approached with caution and was rejected as
far as the alleged clothing parade was concerned, in this case it forms a coherent
and reliable component of the broader circumstantial foundation painstakingly
laid by the State.
THE BALLISTICS EVIDENCE
[98] The ballistic evidence constitutes a powerful and objective component of
the circumstantial case. The firearm with the obliterated serial number,
recovered from the person of Accused 1 at the time of arrest, was conclusively
shown to have fired the cartridge cases recovered at three separate crime scenes:
the liquor store robbery, the murders of the Zwakala brothers, and the Idahoff
superette robbery. A further set of cartridge cases, recovered at the liquor store
and at the scene of the fatal shooting of the police officer, was fired from an
unidentified firearm, which was not recovered. None of the ballistic evidence
implicates the licensed pistol belonging to Accused 2. The effect of these
findings is twofold. First, the presence of the firearm with the obliterated serial
number on A ccused 1’s person, coupled with the ballistic linkage to multiple
scenes, places him directly at the centre of the violent conduct perpetrated
during these offences. Second, the ballistic pattern demonstrates that at least
two firearms were used by the gro up of perpetrators acting in concert. In
circumstances where the evidence establishes that the perpetrators acted
together in executing the robberies and shootings, the principle of common
purpose applies. Even where a particular accused did not personally discharge a
firearm, liability arises if he associated himself with the conduct of the group
and shared the requisite intention. The ballistic evidence, when viewed
cumulatively, supports the inference that the accused acted in concert with the
third perp etrator and that the fatal shootings and robberies were executed in
furtherance of their common criminal design.
THE GUNSHOT RESIDUE EVIDENCE
[99] The gunshot residue (GSR) evidence provides a further objective link
between Accused 1 and the use of a firearm during the commission of the
offences. The residue was detected on his right hand shortly after his arrest. The
expert evidence established that the presence of GSR on a person’s hand is
consistent with that person having discharged a firearm, handled a recently fired
firearm, or been in proximity to a firearm when it was discharged. Accused 1
sought to explain the residue by claiming that he briefly touched a firearm
allegedly located in the backseat pocket of the vehicle moments before the
police arrived. This explanation is inconsistent with the arresting officer’s
evidence that the firearm with the obliterated serial number was found on
Accused 1’s person, and not in the backseat. It is also improbable considering
the ballistic findings linking that fire arm to multiple crime scenes , and the
absence of any credible reason why Accused 1 would have handled a firearm in
the manner he described. When considered cumulatively with the ballistic
evidence, the clothing evidence, the cellphone data, and the possession of stolen
items, the GSR results materially strengthen the inference that Accused 1 was
directly involved in the use of a firearm during the commission of the offences.
Even if Accused 1 did not personally fire every shot, the evidence establishes
that the perpetrators acted together in executing the robberies and shootings. In
these circumstances, the principle of common purpose applies: a participant
who associates himself with the conduct of the group and shares the requisite
intention is liable for the acts of his co ‑perpetrators. The GSR evidence ,
therefore, forms a coherent and persuasive component of the circumstantial
framework implicating Accused 1.
THE CELLPHONE EVIDENCE
[100] The evidential communication analysis conducted by the expert provides
a further objective and technologically reliable strand of the circumstantial
evidence. The billing records of the cellphone number attributed to Accused 1
show that this number triggered towers near each of the crime scenes , namely
the liquor store robbery, the murders of the Zwakala brothers, the fatal shooting
of the police officer, and the Idahoff superette robbery , at times consistent with
the commission of those offences. The same number also triggered towers in the
vicinity of the arrest scene . The expert confirmed that he verified the RICA
(Regulation of Interception of Communications and Provision of
Communication-Related Information Act of 2002 ) information associated with
the numb er and was thus sure that the number wa s that of Soboyise’s when
challenged by Counsel for Accused 1 about whether he did so under cross -
examination.8 No challenge was raised about the accuracy of the data. The
version put to the State witnesses that Accused 1 left home with his cellphone
8 see transcript, page 914, line 20
and R370 in cash, and that he could not remember which number he was using
at the time when the crimes occurred, s hifted materially when he testified. He
then claimed that he left home without his cellphone and that t he number
analysed by the expert did not belong to him. These contradictions, coupled
with the failure to put this denial to the expert, materially undermine his
credibility. The objective cellphone tower data stands uncontroverted . It is
inconsistent with Accused 1’s account of remaining at home after 16h00 and at
the times material to the commission of the crimes.
[101] By contrast, the cellphone number attributed to Accused 2 did not trigger
any towers relevant to the times of the crimes, save for after the arrest, and
therefore does not implicate him. When considered cumulatively with the
ballistic evidence, the clothing evidence, the gunshot residue, the arrest
circumstances, and the possession of stolen items, the cellphone ‑tower analysis
provides strong corroboration of Accused 1’s presence at or near the scenes of
the offences and materially supports the inference that he participated in the
crimes.
THE RECOVERY OF THE STOLEN ITEMS IN THE CAR
[102] The recovery of stolen property in the vehicle belonging to Accused 2
constitutes a further significant component of the circumstantial evidence.
When the accused were arrested, the police found in the vehicle several items
that had been taken during the Idahoff superette robbery, including multiple
cellphones, cigarettes, cash, and the iPhone whose tracking data had led the
police to the vehicle. The deceased police officer’s cellphone was also
recovered in the same vehicle. These items were discovered in plain view, some
on the backseat, others between the fron t seats, and were not concealed. Both
accused denied any knowledge of the presence of these items. Their denials are
inherently improbable. Accused 2 was the owner and driver of the vehicle and a
trained security officer . He was concerned that his vehicle would be stripped
after it was stolen. Yet, he claimed not to have inspected his car carefully after
retrieving it or noticed the presence of numerous cellphones, cash, cigarettes,
and ammunition in his own car, nor did he offer any explanation as to how these
items came to be there. However, he testified about how his car was stolen and
the protracted effort to recover it. Accused 1’s version , that he only saw the
items when he moved to the backseat moments before the police arrived , is
equally implausible considering the quantity and placement of the items and the
objective evidence of the arresting officers. The presence of the stolen property
in the vehicle shortly after the commission of the offences, coupled with the
Accuseds’ inability to provide any credible explanation for its presence,
supports the inference that they were in recent possession of the stolen items.
The court is entitled to draw the inference that the accused were involved in the
robberies in which these items were taken. When co nsidered cumulatively with
the ballistic evidence, the cellphone ‑tower data, the clothing evidence, and the
circumstances of the arrest, the stolen ‑property evidence materially strengthens
the State’s case against both Accused.
THE EVIDENCE CONCERNING THE CAR
[103] The evidence relating to the vehicle used by the perpetrators must be
approached with caution, as some of the information placed before the court
was either hearsay or incomplete. The investigating officer testified that an
unidentified informant reported seeing a black Yaris arrive and leave the mall at
about the time the liquor store robbery occurred. T he informant was neither
identified nor called to testify and this evidence carries little weight. At the
scene of the police officer’s shooting, the eyewi tness could not say whether the
scene of the police officer’s shooting, the eyewi tness could not say whether the
vehicle was a Yaris or a Kia, and this uncertainty limits the probative value of
that observation. The police officer attending to the crime scene testified that it
was the car seen at the other crime scene with the same occ upants. At the
Idahoff superette robbery, police officers who viewed the store’s video footage
reported seeing a blue vehicle parked at the corner, but the footage itself was
not placed before the court. These strands, taken individually, do not establish
that the same vehicle was used in all the offences. However, the objective and
undisputed evidence is that shortly after the Idahoff robbery , the police located
Accused 2’s blue Yaris, without registration plates and with tinted windows , by
using the track ing signal of the stolen iPhone, and that this vehicle contained
multiple stolen items, including the tracked iPhone and the deceased police
officer’s cellphone. Accused 2’s attempt to distance his vehicle from the earlier
descriptions by emphasising its gold alloy wheels and alleged uniqueness in the
township does not detract from the fact that it was the vehicle in which the
stolen property and both accused were found. While the earlier vehicle
descriptions are of limited reliability, the arrest evidence provides a firm and
objective link between Accused 2’s Yaris and the commission of the offences.
When considered cumulatively with the other circumstantial evidence, the
vehicle evidence forms a coherent and persuasive component of the inferential
chain.
EVALUATION OF THE ACCUSED AND THEIR EVIDENCE
[104] Accused 1 elected to testify. His version was riddled with material
contradictions, both internally and when compared with the objective evidence.
He gave conflicting accounts regarding whether he left home wit h his
cellphone, whether the number linked to the cellphone ‑tower data was his,
whether he knew the township of Delft, and whether he questioned Accused 2
about the cellphones and the firearm in the vehicle. His explanation for the
gunshot residue on his r ight hand , i.e., that he briefly handled a firearm
allegedly found in the car’s backseat pocket, is inconsistent with the arresting
officer’s evidence that the firearm with the obliterated serial number was found
on his person and is irreconcilable with the ballistic evidence linking that
firearm to multiple crime scenes. His attempt to distance himse lf from the
clothing worn by one of the perpetrators in the liquor store footage is similarly
unconvincing, given the distinctive patterns and the close correspondence
between the footage and the arrest photographs. His version that he first saw the
numerous cellphones, cash, cigarettes, and firearms only after moving to the
backseat moments before the police arrived is inherently improbable and
contradicted by the objective circumstances of the arrest.
[105] Accused 1’s demeanour was one of disinterest, emotionless and with an
indifferent façade displayed during most of the trial . He began showing some
emotion and raised his voice momentarily when he was confronted with
contradictions in the versions put to the State witnesses and his testimony and
was cornered with evidence and propositions that were difficult to deny. His
evidence was evasive, laced with contradictions, characterised by shifting
explanations and attempts to avoid answering directly . In the absence of any
corroboration and considering the overwhelming objective evidence the State
has presented against him , his version is not reasonably possibly true and is
rejected as false beyond a reasonable doubt.
[106] Accused 2’s version suffers from material improbabilities and
contradictions that do not render it reasonably possibly true. He claimed that his
blue Yaris was stolen within minutes of being left idling at an exit point of the
township, despite being a trained security officer who had previously recovered
the same vehicle after it had been stripped. His account of spending the night
searching for the car at numerous chop shops, only to find it after midnight with
searching for the car at numerous chop shops, only to find it after midnight with
its lights on but no key in the ignition, is inherently improbable and was never
satisfactorily explained. His timeline of events after recovering the vehicle does
not accord with the objective circumstances or with common geographical
knowledge, e.g., that a car ride from Lower Crossroads to Mfulen i would not
take the 45 minutes he allegedly took that night . His assertion that he did not
notice the cigarettes, cash, ammunition, and numerous cellphones, including the
deceased police officer’s phone and the iPhone being tracked and found in his
vehicle, is equally implausible. His attempt to distance himself from Accused 1,
despite evidence of their close association over at least four months preceding
the date of the crimes , further undermines his credibility. The clothing he wore
at the time of his arrest corresponded closely with that of one of the perpetrators
in the liquor store footage, and his explanation that the clothing was generic is
unconvincing. The fabricated “stolen car” affidavit further demonstrates
Accused 2’s consciousness of guilt . In the absence of any corroboration, and
considering the objective evidence linking his vehicle to multiple crime scenes
and to the stolen items recovered therein, his version cannot be accepted as
reasonably possibly true . His denials were not just weak but were clearly false
and his evidence is rejected beyond reasonable doubt.
COMMON PURPOSE
[107] Although the State did not identify which accused fired which shots at
each scene, the doctrine of common purpose applies. Where an accused is
present at the scene, aware of the criminal conduct, and associates himself with
the actions of the perpetrators, he is liable for the resulting offences. The
evidence establishes that both accused were present in the vehicle used
throughout the violent robbery and killing spree, that they acted in concert, and
that they shared a common purpose to commit the robberies and murders.
[108] The credibility findings reinforce the circumstantial and common‑purpose
analysis. The State’s evidence is consistent and corr oborated. The accused’s
versions are false beyond a reasonable doubt. Their denials cannot stand in the
face of the objective evidence. When the evidence is viewed holistically, the
only reasonable inference is that both accused participated in the robberi es and
murders as part of a continuous criminal enterprise. The State has proved its
case beyond a reasonable doubt.
COUNT 14 POSSESSION OF AMMUNITION
[109] The State elected to charge Accused 1 alone with unlawful possession of
the ammunition found in the vehicle at the time of arrest. The evidence,
however, does not establish that Accused 1 had actual or constructive
possession of that ammunition. It was not found on his person or in any place
under his exclusive control, but rather in a vehicle owned and driven by
Accused 2. The ballistic expert did not examine or link the ammunition to either
of the firearms recovered, and no evidence was led to show that Accused 1
handled it or was even aware of its presence. In the absence of proof of both the
physical and mental elements of possession, the State has failed to discharge the
onus resting upon it. The charge of unlawful possession of ammunition against
Accused 1 cannot be sustained and must be dismissed.
THE THIRD PERPETRATOR
[110] The liquor store video footage confirms three perpetrators. Even though
the faces are unclear, the footage shows three distinct individuals participating
in the liquor store robbery. Ballistics confirm a third firearm. A cartridge
recovered at the liquor store and another at the police officer’s murder scene
were fired from the same third firearm, not linked to either accused. A third
perpetrator was noticed at both the scene where the police officer was killed , as
well as the Idahoff superette robbery. The third perpetrator was not
apprehended. This is not unusual in multi ‑perpetrator crimes and does not
weaken the case against the accused. The presence of a third person strengthens
the inference of a coordinated group. It shows planni ng, division of roles, and
joint execution.
[111] Neither does the presence of the third firearm weaken the case against the
two Accused. A group committed the crimes. The group used multiple firearms.
The Accused were part of the group. The doctrine of common purpose applies
where the Accused were present, acted in concert, shared a common design, or
associated themselves with the conduct of the group.
[112] The State sought, during the cross ‑examination of Accused 2, to suggest
the identity of the third perpetrat or. The court did not permit this line of
questioning to proceed, as there was no evidential foundation for identifying the
third perpetrator, and it is not the function of the court to identify additional
suspects. That responsibility lies with the investigating authorities. The court
notes that the investigating officer did not appear to have pursued any
meaningful inquiry into the identity of the third perpetrator, despite the evidence
indicating the involvement of three individuals. While this omission does not
affect the court’s ability to determine the charges against the accused on the
evidence properly before it, it is nonetheless a matter of concern that an obvious
investigative avenue was not explored. The court’s findings must, however, rest
solely on the evidence presented and not on speculation about what further
investigation might have revealed.
[113] The fact that a third perpetrator par ticipated in the offences, and that the
fatal shot which killed the police officer was fired from a firearm not linked to
either accused, does not exonerate them. On the contrary, it reinforces the
conclusion that the crimes were committed by a group actin g in concert. In
terms of the doctrine of common purpose, each participant is liable for the acts
of the others where they were present, aware of the criminal conduct, intended
to make common cause with the perpetrators, and performed acts of association.
The evidence establishes that both accused were present throughout the
sequence of events, associated themselves with the conduct of the group, and
shared the requisite intent. They are therefore liable for the murders and
robberies, irrespective of who fired the fatal shot.
CONVICTION
[114] In assessing whether the State has discharged its onus in proving the
Accused’s guilt the court is mindful that the State bears the burden of proving
each element of every offence beyond reasonable doubt, and that the accus ed
are entitled to an acquittal if their versions are reasonably possibly true. The
State’s case rested on a series of mutually reinforcing strands of objective
evidence—ballistic findings, gunshot residue, cellphone ‑tower data, distinctive
clothing, the r ecovery of stolen items, and the circumstances of the arrest —
which, when viewed cumulatively, formed a coherent and compelling
circumstantial framework. Against this, both Accused advanced versions that
were internally contradictory, externally inconsisten t with the objective
evidence, and inherently improbable. Their explanations shifted materially
during the trial, were not put to key witnesses, and were unsupported by any
corroboration. Having evaluated their testimony in the light of the totality of the
evidence, the court is satisfied that their versions are not reasonably possibly
true and fall to be rejected. The court turns to consider, count by count, whether
the State has proved the charges beyond a reasonable doubt and makes the
following order that is to be read in conjunction with the amended indictment:
[115] Counts 1–3: The State was required to prove beyond a reasonable doubt
that the accused, acting with the intention to steal, unlawfully took property
from the complainants at the Shoprite liquor store on 26 November 2019, and
that aggravating circumstances as defined in section 1 of the Criminal
Procedure Act were present. The evidence establishes that three perpetrators
entered the store armed with firearms, threatened the complainants, and forcibly
removed a Samsung cellphone from Ayanda Nondlozi (Count 1),9 cash from the
till points under the control of Bulelwa Zulu (Count 2), and cash under the
control of Lelethu Jack (Count 3). Although the perpetrators’ faces were not
identifiable from the video footage, the distinctive clothing worn by two of
them corresponded closely with the clothing worn by Accused 1 and Accused 2
at the time of their arrest. The ballistic evidence links the firearm found on
Accused 1 to a cartridge case recovered at the liquor store. The cellphone‑tower
data places Accused 1’s number in the vicinity of the store at the relevant time.
The stolen items recovered in Accused 2’s vehicle shortly after the Idahoff
robbery, together with the circumstances of the arrest, further corroborate their
involvement in the earlier robbery. Both accused advanced versions that were
internally contradictory, externally inconsistent with the objective evidence, and
inherently improbable. Their denials are not reasonably possib ly true. The court
is satisfied that the State has proved beyond a reasonable doubt that both
accused participated in the robbery at the liquor store and that aggravating
circumstances were present. Both Accused 1 and Accused 2 are accordingly
found guilty on Counts 1, 2 and 3.
[116] Counts 4–5: The State was required to prove beyond a reasonable doubt
that the accused unlawfully and intentionally killed Siyabonga Elvis Zwakala
(Count 4) and Siyanda Zwakala (Count 5) on 27 November 2019, and that the
(Count 4) and Siyanda Zwakala (Count 5) on 27 November 2019, and that the
murders wer e committed in circumstances falling within section 51(1) of the
9 The amended indictment referred to cash taken from Nondlozi, but the evidence did not prove this
aspect of the charge.
Criminal Law Amendment Act 105 of 1997. The ballistic evidence establishes
that the cartridge cases recovered at the scene where the Zwakala brothers were
shot were fired from the same firear m with the obliterated serial number found
on the person of Accused 1 at the time of his arrest. This firearm was also
linked to cartridge cases recovered at the liquor store robbery and the Idahoff
superette robbery, demonstrating a continuous course of c onduct by the same
group of perpetrators. The cellphone ‑tower data places the number attributed to
Accused 1 in the vicinity of the murders at the relevant time, and the distinctive
clothing worn by both accused at arrest corresponds with that worn by two of
the perpetrators in the earlier robbery. The evidence further shows that the
group used at least two firearms and that the perpetrators acted together in
moving between the crime scenes. Even if either accused did not personally fire
the fatal shots, th e doctrine of common purpose applies: the murders were
committed in the execution or furtherance of their joint criminal enterprise, and
in the course of or in furtherance of robberies involving aggravating
circumstances. The versions advanced by both accu sed are riddled with
contradictions, inherently improbable, and inconsistent with the objective
evidence. Their denials are not reasonably possibly true. The State has
accordingly proved beyond a reasonable doubt that both accused are guilty of
the murders of Siyabonga and Siyanda Zwakala. Both Accused 1 and Accused
2 are therefore found guilty on Counts 4 and 5.
[117] Count 6: The State was required to prove beyond a reasonable doubt that
the accused, acting with the intention to steal, unlawfully took the cellphone of
the deceased police officer, Thanduxolo Wiseman Stuma, by inducing his
submission through the threat of violence with firearms, and that aggravating
circumstances as defined in section 1 of the Criminal Procedure Act were
circumstances as defined in section 1 of the Criminal Procedure Act were
present. The evidence establishes that the perpetrators confronted Officer
Stuma, disarmed him through the threat of firearms, and relieved him of his
cellphone before he was fatally shot. The ballistic evidence links cartridge cases
recovered at the scene of his killing to the same unrecovered third firearm that
was used moments earlier at the liquor store robbery, demonstrating continuity
of action by the same group of perpetrators. The cellphone‑tower data places the
number attributed to Accused 1 in the vicinity at the relevant time, and the
distinctive clothing worn by both accused at arrest corresponds with that worn
by two of the perpetrators in the earlier robbery. The stolen cellphone of Officer
Stuma was recovered shortly thereafter in Accused 2’s vehicle, together with
other stolen items, and neither accused provided a credible explanation for its
presence. Even if either accused did not personally take the cellphone or
threaten the officer, the evidence establishes that the perpetrators acted in
concert, using multiple firearms, and moved together between the crime scenes.
The robbery was committed in the execution or furtherance of their joint
criminal enterprise, and in circums tances falling within Part II of Schedule 2 to
Act 105 of 1997. The versions advanced by both accused are not reasonably
possibly true. The State has proved beyond a reasonable doubt that both accused
are guilty of the robbery with aggravating circumstance s committed against
Officer Stuma. Both Accused 1 and Accused 2 are accordingly found guilty
on Count 6.
[118] Count 7: The State was required to prove beyond a reasonable doubt that
the accused unlawfully and intentionally killed Thanduxolo Wiseman Stuma on
27 November 2019, and that the murder was committed in circumstances falling
within section 51(1) of Act 105 of 1997. The ballistic evidence establishes that
the cartridge cases recovered at the scene of Officer Stuma’s killing were fired
from the same unre covered third firearm that was used moments earlier at the
liquor store robbery. This ballistic continuity demonstrates that the same group
liquor store robbery. This ballistic continuity demonstrates that the same group
of perpetrators moved between the crime scenes and acted in concert. The
evidence further shows that Officer Stuma w as confronted, robbed of his
cellphone, and then shot at close range by one of the perpetrators. The stolen
cellphone was recovered shortly thereafter in Accused 2’s vehicle, together with
other stolen items, and neither accused provided a credible explana tion for its
presence. The cellphone ‑tower data places the number attributed to Accused 1
in the vicinity at the relevant time, and the distinctive clothing worn by both
accused at arrest corresponds with that worn by two of the perpetrators in the
earlier robbery. Even if either accused did not personally fire the fatal shot, the
doctrine of common purpose applies: the murder was committed in the
execution or furtherance of their joint criminal enterprise, and in the course of
or in furtherance of a robber y with aggravating circumstances. The versions
advanced by both accused are not reasonably possible true. The State has
proved beyond a reasonable doubt that both accused are guilty of the murder of
Officer Stuma. Both Accused 1 and Accused 2 are according ly found guilty
on Count 7.
[119] Count 13 : The State was required to prove beyond a reasonable doubt
that the accused unlawfully possessed a prohibited firearm, namely the 9mm
Parabellum Walther pistol with an obliterated serial number, without the
requisite licence or authorisation. The firearm was recovered from the person of
Accused 1 at the time of arrest. Ballistic analysis established that this firearm
was used in the liquor store robbery, the murders of the Zwakala brothers, and
the Idahoff superette robbery. The evidence further shows that the accused acted
together throughout the sequence of offences, moving between the crime scenes
in concert and using multiple firearms in the execution of their joint criminal
enterprise. Accused 2 was aware that firearms were being used, associated
himself with their use, and continued to partici pate in the armed robberies and
shootings. In these circumstances, the doctrine of joint possession applies .
shootings. In these circumstances, the doctrine of joint possession applies .
Although Accused 2 did not physically hold the firearm, he shared the intention
that it be used in furtherance of their common purpose and exercise d possession
through Accused 1. Neither accused held a licence for the firearm, and their
versions are not reasonably possibly true. The State has accordingly proved
beyond a reasonable doubt that both accused unlawfully possessed the
prohibited firearm. Both Accused 1 and Accused 2 are therefore found guilty
on Count 13.
[120] Count 14: In respect of Count 14, the State was required to prove beyond
a reasonable doubt that Accused 1 unlawfully possessed at least eleven rounds
of 9mm ammunition without being the holder of a licence for a firearm capable
of discharging such ammunition, or any of the alternative authorisations
contemplated in the Firearms Control Act. The evidence does not establish that
Accused 1 was in possession of the ammunition alleged in the c harge. No
witness testified to having found ammunition on his person or under his control,
and the State did not lead evidence addressing the statutory components of the
offence, including the absence of the relevant licences or permits. In these
circumstances, and for the reasons set out earlier in this judgment, the State has
failed to discharge its onus. Accused 1 is accordingly found not guilty and
discharged on Count 14.
_____________________________
BHOOPCHAND AJ
Acting judge
High Court
Western Cape Division
Judgment was handed down on Friday 27 February 2026
State Prosecutor: Advocate Rudolph
Accused 1 represented by Advocate Vundla
Accused 2 represented by Advocate Kunju