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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: SS 118/2022
In the matter between:
THE STATE
and
MAZIBUKO, SIZWE 1ST Accused
SHABALALA, MENZIWA 2nd Accused
NGUBENI, QAPHELA 3rd Accused
MNGUNI, KITSO 4th Accused
DUGE, HLONIPHENI 5th Accused
MVUBU, PHENDULANI 6th Accused
NGWADI, MIKE 7th Accused
THOBOLO, ANDREW 8th Accused
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
DATE 31/03/2026 SIGNATURE
NKOSI, KHULEKANI 9th Accused
MATJEBELE, ALEX 10th Accused
GASA, SANDILE MILTON 11th Accused
JUDGMENT
Mia, J
Introduction
[1] The charges in this matter arise from a coordinated law enforcement
operation conducted on 21 February 2022 in Rosettenville, during which a
group of armed individuals engaged police officers and a helicopter in a
sustained exchange of gunfire, resulting in multiple fatalities and injuries. The
accused are indicted on the following charges:
(a) conspiracy to commit robbery with aggravating circumstances;
(b) murder (8 counts);
(c) attempted murder (28 counts);
(d) possession of prohibited firearms (8 counts);
(e) unlawful possession of ammunition (8 counts);
(f) unlawful possession of explosives (2 counts);
(g) robbery with aggravating circumstances (4 counts); and
(h) theft (2 counts)
Accused 11 faces only the charges of possession of prohibited firearms (5 counts),
unlawful possession of firearms (2 counts), and unlawful possession of ammunition.
The accused entered pleas of not guilty in respect of all charges and elected to
remain silent. Formal admissions were made during the trial.
[2] The State's case is not one of isolated individual conduct but of organised
criminal activity, culminating in armed resistance to law enforcement. The
defence disputes that the accused can be linked to the shooting, the
conspiracy to commit robbery with aggravating circumstances, the murders or
the robberies.
[3] The evidence established, prima facie, that:
(a) a group gathered at the premises at 5[...] Friars Hill Road;
(b) the gathering was for the purpose of executing a robbery, as evidenced
by the presence of firearms and explosives;
(c) a coordinated police operation was mounted in response;
(d) upon confrontation at 5[...] Friars Hill Road, multiple individuals armed
with firearms opened fire on police officers and a police helicopter; and
(e) the events unfolded across several interconnected crime scenes.
[4] During the trial the accused made formal admissions in terms of section 220
of the Criminal Procedure Act 51 of 1977 (Criminal Procedure Act),
concerning the collection of exhibits and specimens. The admissions relate to
the location of several vehicles found at the various crime scenes, and the
formal admissions did not directly implicate any of the accused.
[5] It is common cause that the incident involved multiple crime scenes in
Rosettenville, including 5[...] Friars Hill Road, [...] Hekla Road, Violet Street
and South Rand Hospital. A map of the terrain indicates that Friars Hill Road
extends from Daisy Street in the north to South Rand Hospital in the south.
Several streets run perpendicular to Friars Hill Road, significant among them
being Hekla Road, the second significant address where the response team
engaged the suspects. Violet Street, the third road where shooting occurred,
ran parallel to Friars Hill Road behind South Rand Hospital.
[6] The State called witnesses from several law -enforcement agencies as well as
forensic witnesses in support of its case. The response team witnesses
testified about the armed resistance they encountered, evidence led to
establish the inferential framework of common purpose. To succeed, the
prosecution must establish that the accused shared a common intent and
actively participated in the criminal acts. The evidence of each witness is
actively participated in the criminal acts. The evidence of each witness is
addressed below.
[7] The confrontation arose when members of the South African Police Service
received information about a planned robbery and the address at which the
perpetrators were alleged to have assembled. The response team planned to
apprehend the suspects before the robbery was executed. The response
team comprised an airwing component and a ground team. Colonel Maartens
(Maartens) and Warrant Officer Naicker (Naicker) were stationed in Pretoria at
the airwing division of the South African Police Service and formed the airwing
team. The ground team comprised Sergeant Zola Mrulekani (Highway Patrol),
Constable Lincoln Moloi (JMPD K9 Unit), Constable Nhlanhla Vilakazi (JMPD
K9 Unit), Constable Percy Mothapo (Highway Patrol), Constable Sello
Johannes Makhafula (South African Police Service), Constable Sibusiso
Mthiya, Sergeant Levy Ramolwa Semisi, and Constable Modjadji (all EMPD).
The response team attended a briefing and resolved to approach the property
by air and land. All team members were added to a WhatsApp group , as it
was believed that police radio communications were compromised.
[8] Several critical facts are either formally admitted or not placed in dispute:
(a) a coordinated police operation was conducted in respect of 5[...] Friars
Hill Road;
(b) a police helicopter arrived first on the scene;
(c) the helicopter was fired upon by persons inside the premises;
(d) armed individuals exited the premises, fired at police, and fled;
(e) a BMW with armed occupants discharged firearms at police;
(f) police pursued suspects to [...] Hekla Road, where further shooting
occurred;
(g) four deceased persons were found at that location;
(h) accused 4 and accused 9 were arrested inside the Hekla Road
premises;
(i) firearms, explosives, ammunition, and stolen vehicles were recovered;
and
(j) forensic evidence, including DNA and gunshot residue found at the
scene, did not conclusively link certain accused to the scene.
[9] Notwithstanding the challenges to the State’s witnesses, the facts establish
the existence of a coordinated armed group engaged in ongoing criminal
conduct across multiple locations.
[10] The airwing team was among the first to arrive at the property. This was
confirmed both by the State witnesses and by the defence witness Ms
Mntambo. The evidence indicated that the helicopter hovered overhead and
circled the property. Whilst orbiting the safe house, Naicker saw people
running around in the yard and observed three people running out through the
gate, heading south down the road towards South Rand Hospital. He testified
that persons in the courtyard moved between the vehicles parked there before
exiting. Naicker informed Maartens that persons in the courtyard were firing at
the helicopter. Naicker returned fire using an R5 rifle and, as a result of shots
fired at the helicopter, sustained a serious injury. This prompted Maartens to
withdraw, to convey Naicker to Milpark Hospital and to prevent further
damage to the helicopter. Maartens also requested assistance from the
ground officers, who had parked a distance from 5[...] Friars Hill Road.
[11] The defence challenged this version, asserting that no cartridges were found
in the area where the shooter was said to be when Crime Scene Management
processed the scene. This challenge was maintained throughout cross -
examination. It was put to the State witnesses that a significantly higher
number of cartridges found at the various scenes were identified as having
emanated from the response team's firearms. The large number of cartridges
found at the scene was relied upon by the defence to suggest tha t the
response team used excessive force during the confrontation. However, this
does not suggest that no force was directed at the response team when the
helicopter hovered overhead, or that the suspects offered no resistance to the
response team's efforts to enter the property.
response team's efforts to enter the property.
[12] Upon hearing the request for assistance and the gunshots, the ground team
approached the property. The consistent account from the State witnesses
was that they observed the gate opening and a BMW reversing into the road.
They observed a passenger leaning out of the window, firing an automatic rifle
at the helicopter and at the ground team approaching from the Daisy Street
entrance in Friars Hill Road.
[13] Sergeant Zola Mrulekani, employed at the South African Police Service in the
Highway Patrol Unit, was responsible for organising members of the police for
this operation. On 18 February 2022, he received information from the
National Crime Intelligence unit and was tasked with overseeing the
operation. He organised the ground team comprising members of the South
African Police Service, JMPD and EMPD. A briefing was conducted with the
response team, which concluded at approximately 14h00. All members of the
team wore civilian clothing and bullet -proof vests. The plan was to divide into
small groups, to corner the suspects and to arrest them. Scouts who had
attended the briefing were deployed to maintain surveillance of the suspects.
After the briefing, they headed to the safe house, approaching from different
directions. It was agreed that the helicopter would go in first.
[14] Mrulekani heard gunshots from multiple directions and proceeded to check on
the members of the team. During the operation he requested backup
assistance from Moffatview Police Station, upon hearing that shots had been
fired at the helicopter and the ground team. Whilst approaching the safe
house, he saw a silver BMW motor vehicle nearby. He cordoned off the street
and, upon investigating further, saw that two persons in the BMW had been
shot. He called emergency services.
[15] During cross -examination, he conceded that he was not familiar with the
Standard Operating Procedures and could not provide the names of the
officers he had travelled with, the vehicles used, or the procedures that had
been followed. The defence argued that he should never have overseen the
operation as it was not conducted in the manner required for such operations.
The witness conceded that his approach to conducting operations was not
consistent with the applicable standing orders relating to crime scenes.
consistent with the applicable standing orders relating to crime scenes.
[16] Constable Nhlanhla Vilakazi is employed as a metro officer at JMPD K9 unit.
He confirmed the plan to take the persons at 5[...] Friars Hill Road by surprise
and arrest them as they exited. He travelled in an Isuzu bakkie with Constable
Moloi and Sergeant Tlotli when they entered Friars Hill Road from Daisy
Street. Upon entering the street, they saw ten people exiting the yard via the
black gate at 5[...] Friars Hill Road. Three of those persons were in
possession of large firearms and fired in their direction whilst running towards
South Rand Hospital. He recalled the BMW reversing from the yard while the
helicopter was still overhead. The person seated in the right rear passenger
seat was shooting at the helicopter. Constable Vilakazi fired at that
passenger, which stopped the shooting from the BMW, though he could hear
gunshots from other areas. He was positioned at the indentation of the school
wall for cover. He used an LM5 rifle and fired 30 rounds. He did not enter the
courtyard at 5[...] Friars Hill Road.
[17] Constable Lincoln Moloi is a metro officer at JMPD K9 unit. He attended the
briefing at 14h00 alongside his co-driver Constable Vilakazi and confirmed the
plan to surround the safe house and arrest the occupants as they were
leaving. On the way to the safe house, they were informed by the helicopter
team that they were being fired upon. They drove in convoy behind a VW
Polo, driven by officers from EMPD, and entered via Daisy Street. He
observed suspects inside the courtyard at the gate, who fired in their direction.
He took up position between a tree in Gothard Street and the boundary wall of
5[...] Friars Hill Road and fired from that position at suspects and at the BMW
when it reversed. He fired 30 rounds with his rifle. He could not see all officers
but warned Constable Vilakazi, who was positioned at the indent of the school
wall, to move out of his line of fire. When the shooting ended, he, Constable
Vilakazi and Sergeant Tlotli guarded the BMW until the Local Criminal Record
Centre (LCRC) and Directorate for Priority Crime Investigation (DPCI) arrived.
His view regarding Video 4 is that the footage was taken out of context.
[18] Metro Police Officer Percy Mothapo is stationed at the Gauteng Highway
[18] Metro Police Officer Percy Mothapo is stationed at the Gauteng Highway
Patrol and has eight years' experience. He attended the briefing and
confirmed that he was given an instruction by Sergeant Mrulekani and
Constable Moloi to observe the area near South Rand Hospital. He travelled
in an unmarked vehicle in civilian clothes, together with Constable Mogotlo.
He parked opposite South Rand Hospital, facing the hospital gate, at the
position marked PM on Exhibit H. He observed people getting out of vehicles
and meeting there. A police aircraft flew past, which appeared to unsettle
those present. When a helicopter was heard, people retreated to their
vehicles and left. He heard gunshots and, together with Constable Mogotlo,
proceeded on foot towards 5[...] Friars Hill Road from the hospital side. He
saw colleagues driving towards 5[...] Friars Hill Road from the opposite
direction via Daisy Street. He also saw the BMW reversing from 5[...] Friars
Hill Road and the person sitting in the rear passenger seat. He recalled
seeing the passenger pointing a firearm and shooting towards the helicopter
and recalled his colleagues shooting at the BMW.
[19] He similarly observed men exiting 5[...] Friars Hill Road carrying rifles. They
ran south down Friars Hill Road and then turned into Hekla Road. He was
approximately 100 to 200 metres away from them at that stage. Constable
Mncwango and Constable Makhafula followed these men, and he too turned
into Hekla Road to provide backup. Upon entering Hekla Road, he saw six
men shooting towards Constable Mncwango and Constable Makhafula to
prevent them from following. The men ran into the yard at [...] Hekla Road. His
colleagues stood outside the gate, unable to enter as they were being fired
upon from the house. They returned fire, with him serving as backup. When
the shooting subsided, they entered the yard and observed a person rolling on
the floor inside the house. That person rolled outside and remained there. He
observed two people lying at the door entrance and two others who were
injured. One person was uninjured. He saw a rifle lying near the injured
people in the room. He arrested a person named “Kitso”, while Constable
Makhafula arrested the other person. Both were taken to Moffatview Police
Station. He identified accused 4 as the person he had arrested; the second
person arrested was accused 9.
person arrested was accused 9.
[20] During cross -examination, he conceded that he was unable to differentiate
between civilians and suspects when he was sent to observe the area, and
that the road was not closed to civilians during the operation. He also
conceded that civilians could have run into yards and houses to escape the
shooting. While the witness made this concession, none of the accused
advanced this explanation or placed any reliance upon it. The evidence from
the State witnesses and the video footage shows that two civilian persons
were held outside the property, did not form part of the group of arrested
persons, and were not prosecuted.
[21] Constable Sello Johannes Makhafula is attached to the Gauteng Highway
Patrol Unit. He was partnered with MPO Makola and travelled in an unmarked
VW Golf, both in civilian clothes and wearing bullet -proof vests. They carried
firearms: a pistol and an R5. The R5 was loaded with 60 rounds in two
magazines; Constable Makhafula’s pistol had 34 rounds in two magazines.
He heard gunshots before they turned onto Friars Hill Road and also heard
the helicopter team reporting that the suspects were shooting at them. When
they entered Friars Hill Road, he noticed a Toyota Quantum on the road and a
male person actively shooting with a firearm. When the shooter noticed their
vehicle, he turned in their direction while still firing. The shooter was
approximately two streets awa y from where they had parked. They alighted
from the vehicle and returned fire. The man fired at them from the hospital
side of Friars Hill Road, having previously been shooting at the helicopter.
When Constable Vilakazi arrived, Constable Makhafula observed the gate at
5[...] Friars Hill Road opening and closing. They advanced and, when the gate
opened, he noticed a silver vehicle reversing and alerted Constable Vilakazi.
As the vehicle reversed, he saw that the windows were open and the rear
passenger was holding a firearm protruding through the window directed
towards them. He could only see the driver of the vehicle. They fired in the
direction of the vehicle. He also noticed people running out of the yard
towards the hospital.
[22] They pursued the persons running away as they turned left into Hekla Road.
He was joined by Constable Mothapo, MPO Ncwane, and MPO Makgotlo , the
latter two having come from the direction of the hospital. They pursued the
latter two having come from the direction of the hospital. They pursued the
men who had entered [...] Hekla Road. A person fired at them as they entered
through the gate. He waited for MPO Ncwane, MPO Makgotlo, and Constable
Mothapo at the gate. They formed a stack -up by the gate, a tactical
manoeuvre in which some members kept guard while another observed from
behind. Upon entering, they saw that the front door was open and gunshots
were coming from inside. They returned fire through the door. Before they
reached the door, both sides ceased fire. Upon entering, they found people
lying inside the house and two large firearms.
[23] MPO Ncwane and MPO Makgotlo secured those firearms and stood guard
over them. In searching the house, they discovered six occupants. Five of the
six were injured; one was uninjured. Three had died. At this address,
Constable Makhafula arrested Khulekani Nkosi, who was injured. He was,
however, unable to identify Mr Nkosi in court, which was attributed to the
passage of time between the encounter and the date the evidence was
tendered. The arrest was effected on the basis that Mr Nkosi was found in
possession of an unlicensed firearm and ammunition and was suspected of
the attempted murder of police officers.
[24] A fourth person managed to crawl on his hands and knees outside the house,
where he succumbed to his injuries. They called all role -players, including
emergency services, to attend the scene and administer aid to the injured.
The scene was handed over to the LCRC. Constable Makhafula denied the
suggestion that one of the persons found in the house, who had dust on his
hands, was not a suspect. It was put to the witness that it was inevitable that
anyone in the house would have had dust on their hands, as the house was
under construction.
[25] Sergeant Semisi has been stationed at the highway patrol unit for 15 years.
He was on duty but could not recall his crew. He wore civilian clothes and
drove a marked BMW while on crime prevention duties but proceeded to
Friars Hill Road in an Isuzu vehicle. He received an instruction from Colonel
Molefe to attend the briefing. They waited near the dam for a go -ahead from
the National Crime Intelligence unit and the helicopter team. Sergeant Semisi
knew officers Mthiya, Mncwango, and Modjadji, having conducted similar
knew officers Mthiya, Mncwango, and Modjadji, having conducted similar
operations with them previously. They drove in convoy to 5[...] Friars Hill Road
after receiving the instruction to proceed, entering from the Daisy Street side
of Friars Hill Road. When they approached the school, he heard active
gunshots.
[26] He confirmed that the helicopter was orbiting the safe house. Upon hearing
gunshots, he ran towards the direction of the sounds and stopped at the
corner of the property. He observed the Quantum vehicle parked in the road
and noticed suspects at the gate of 5[...] Friars Hill Road actively shooting at
them. He returned fire using an R5 rifle. He confirmed that the BMW reversed
from the yard at 5[...] Friars Hill Road with its window down and a person on
the left rear side in possession of a rifle, which was pointed through the
window. He also noticed other suspects inside the yard in possession of a
rifle. They encountered fire from those persons and fired back. The person
dropped the firearm next to the vehicles parked in the courtyard. He noticed
three suspects between vehicles and marked their positions as “LS4”, “LS5”,
“LS6”, and “LS7.” At that point, those persons had nothing in their possession.
He later ordered them to lie down. Mthiya brought two further suspects. All
were searched and nothing illegal was found on them.
[27] During cross-examination he stated that the suspects were not taken to the
police station immediately because there was no police vehicle available.
[28] Sergeant Semisi confirmed that the suspects were made to lie on their
stomachs near the white wall, as depicted in Exhibit “N”, and that they were
not handcuffed after arrest. He conceded that the former Minister of Police, Mr
Bheki Cele, and his entourage entered the crime scene at 5[...] Friars Hill
Road, despite no one being permitted to do so. Sergeant Semisi also
conceded that the suspects were taken to the police station late and that
people walked through the crime scene impermissibly.
[29] Constable Mthiya is employed at EMPD Crime Prevention. He arrived at
JMPD at 13h00 with his colleagues Mncwango and Modjaji, where they met
members of the South African Police Service and the National Crime
Intelligence unit, who conducted the briefing. The plan was that they would
Intelligence unit, who conducted the briefing. The plan was that they would
approach the house where the suspects had assembled from different
directions. Scouts, namely Dana and Makgotlo, were sent to observe before
they arrived. He drove an Isuzu bakkie and was armed with a pistol and 5[...]
rounds. They stopped en route and heard gunshots whilst approaching Daisy
Street. They also heard the airwing response team communicate that they
were in a shootout with the suspects. He observed Sergeant Tlotli and
Constable Vilakazi ahead of him and proceeded to 5[...] Friars Hill Road. He
observed approximately six men in the street armed with rifles, running
towards the hospital, with Modjaji and Semisi behind him. Whilst approaching,
he saw a BMW coming out from the black gate in reverse. He then saw the
person seated on the left rear in possession of a firearm pointed in their
direction, and as soon as they were noticed, shots were fired. They returned
fire towards the BMW. Sergeant Semisi entered the property chasing after
one person, followed by Constable Modjaji. Constable Mthiya focused on
some suspects while his colleagues focused on others. He found two males,
one of whom was shooting with a rifle; he did not know the second person. He
ordered them outside to join the suspects lying on the ground. He observed
that accused 10 was injured. He watched over the suspects while Sergeant
Semisi checked the vehicles parked inside the yard. In a room, he found
bottles containing paraffin and petrol, and explosives. After calling for
emergency assistance, the crime scene w as handed over to the LCRC while
the investigating officer stood outside.
[30] It was put to Constable Mthiya that he had not searched the suspects when
he ordered them out of the room, indicating that he did not regard them as
dangerous. He responded that he had not searched them because of safety
concerns; he ordered Sergeant Semisi to search whilst he stood guard.
Constable Mthiya confirmed that the two suspects were compelled to lie on
the ground with their heads resting on the buttocks of the person in front of
them, in an area where shots had been fired and where spent cart ridges were
evident. He conceded that this would spread gunshot residue, though he
would not concede that gunshot residue could transfer to a person merely
from being in the vicinity where a gun had been fired. He confirmed that the
from being in the vicinity where a gun had been fired. He confirmed that the
suspects were touched by the same police officers who had handled several
of the accused, thereby creating the possibility of gunshot residue transfer. He
conceded that no one was permitted to enter the crime scene and that the
Minister's, Deputy at the time, entry had potentially compromised the forensic
evidence. He maintained that Captain Molefe from the National Crime
Intelligence unit had arranged the operation.
[31] Constable Mfana March Modjadji is employed at EMPD as a constable with
ten years’ service. He confirmed the briefing and that they were armed. He
observed the helicopter flying above 5[...] Friars Hill Road and then saw two
men run out of the safe house carrying firearms. A third man knelt at the gate
of 5[...] Friars Hill Road with a rifle, shooting at the helicopter. The two men
and the third man then fired shots in their direction. The three males at the
gate ran back into the yard at 5[...] Friars Hill Road when they returned fire. A
BMW reversed out of the yard. The person sitting in the back seat was
holding a rifle and shooting in their direction.
[32] He fired shots towards the person in the BMW. He was unsure how many
shots he fired or whether his colleagues also fired, although he heard shots
from all around. After a short while, the shooting stopped and he, Sergeant
Semisi, and Constable Mthiya approached the BMW, announcing that they
were police. Seeing that the people in the BMW were not moving, they then
approached the black gate at 5[...] Friars Hill Road.
[33] As they approached the gate, shots were fired in their direction. They returned
fire. There were two males standing next to the wall and another person
standing next to the rooms. He ordered a person identified as standing at the
marked point MM5 to lie down. He admitted that, according to the applicable
legislation, he was not permitted to investigate crimes and that he had
participated on the instruction of the National Intelligence unit. He confirmed
that the people arrested were not physically in possession of any firearms or
explosives, and that only one firearm was recovered in the yard at 5[...] Friars
Hill Road, while explosives were found in several rooms in that yard. When
questioned about a discrepancy between his evidence and his prior
statement, he said that he had not thought the matter important and that it had
not been put to him. He added that he had not mentioned the men he
not been put to him. He added that he had not mentioned the men he
encountered in his statement because he had only recalled them when giving
his evidence. He maintained that the three people shooting at them provided
him with a legal justification to shoot in return.
[34] He stated that the person seated outside at the wall of 5[...] Friars Hill Road,
wearing a red t -shirt as depicted in Video 1, had said he was a tenant in the
rooms there. He denied that the person had been brought to 5[...] Friars Hill
Road improperly, saying he had no motive to do so. He disagreed with the
version that the accused had been brought to the scene while innocently
sitting in their vehicles. He maintained that he had arrested accused 1 in the
courtyard and accused 2 in the yard, disputing that accused 2 had been some
distance away in his vehicle. In relation to the defence proposition that
accused 2 and accused 7 were not on the property, he was unable to
comment. He was similarly unable to comment on accused 5's version that he
owned the vehicle depicted parked at the hospital in photos 39 to 62, or on
the movement control records showing that accused 5 had only entered South
Africa that morning.
[35] The defence proposition that 352 cartridges fired by police were found on
Friars Hill Road was accepted. Constable Modjadji maintained that this was
not evidence of excessive force, proof of an intent to kill, or proof that the
police had exceeded the permissible bounds.
[36] Accused 5 testified that he had been contracted to transport bodies from
South Rand Hospital to Zimbabwe. He had arrived in South Africa that
morning. He received a call and went to meet a family at the hospital to
transport them to the undertaker's office and was arrested in his vehicle. A
contradiction arose regarding whether, after arriving, he had gone home first
or had gone directly to the office and then to the hospital. A time delay may
account for this discrepancy, as it does for the inaccuracies in the State
witnesses’ accounts, which were attributable to the heightened activity,
shooting, and the arrival of law enforcement at the scene. Of significance,
however, is the change in accused 5’s testimony as compared to the
statement he made during his bail application.
[37] Ms Mntambo’s evidence clarified the issue regarding the timing of the
shooting. She confirmed that police entered the property in search of persons
shooting. She confirmed that police entered the property in search of persons
who had taken refuge inside to escape the confrontation. She did not observe
anyone but saw blood in the area after the police had left.
[38] The forensic evidence tendered in support of the State’s case proved
inconclusive in respect of both gunshot residue (GSR) and DNA analysis.
Warrant Officer Wilson Ramolamu Morotjele (Morotjele), a DNA analyst from
the Forensic Science Laboratory in Pretoria, provided expert testimony on
DNA analysis. His evidence indicated that DNA can be deposited through
touch, sweat, blood, saliva, hair, or nails, and that analysis can yield positive,
negative, or inconclusive results. Inconclusive results arise wh ere there is
insufficient DNA or where environmental factors affect the sample.
[39] Morotjele confirmed that his analysis was based on the samples received and
the results obtained, but that he could not definitively determine how the DNA
was deposited on the items or whether the individuals were physically present
at the scene. He analysed various exhibits, including vehicle keys, blood clots,
rifles, gloves, facemasks, and jackets. He found positive DNA results on
vehicle keys, a blood clot, a glove, a facemask, and a jacket, all of which
contained blood from the same donor. Some ri fle swabs yielded inconclusive
results due to insufficient DNA. Mixed DNA profiles were found on certain
items, indicating contributions from more than two individuals.
[40] Significantly, Morotjele’s evidence was that DNA can be transferred through
shaking hands or touching objects, and that a person’s DNA found on an
object does not necessarily mean that person was present at the location
where the object was found. In the present matter, when the defence put it to
him that DNA could be transferred where different persons had been in
contact with each other, Morotjele agreed that transfer could have occurred
where the alleged perpetrators were required to lie in a line against a wall with
their heads resting on the person in front of them. The evidence also indicated
that one of the persons lying on the ground was lying on top of exhibits found
that one of the persons lying on the ground was lying on top of exhibits found
on the property. Morotjele confirmed that contamination could occur in such
circumstances.
[41] The defence’s submissions that some accused were arrested at locations
other than the alleged crime scene and were later brought to the yard at 5[...]
Friars Hill Road support the possibility of DNA transfer and contamination.
Morotjele acknowledged that transfer DNA could explain the presence of DNA
on certain items without the person having been physically present at the
scene. He agreed that mixed DNA profiles could result from indirect transfer
and contamination, particularly if items were packed together in one evidence
bag. This is especially so given that the source of DNA found on the vehicle
keys, blood clot, glove, facemask, and jacket was blood, and that a mixture of
DNA profiles was found on a glove and a steering wheel swab, with the DNA
source being epithelial (skin) cells. One possible inference is that, while
planning the crime, the perpetrators may have touched the glove and
facemask. The different DNA samples found on the steering wheel similarly
point to several persons having been in the vehicle. Morotjele also stated that
foreign DNA results were obtained from some exhibits, meaning that none of
the 11 accused's DNA matched those samples. This evidence highlights the
complexities of DNA analysis, including the potential for transfer and
contamination, and its impact on the interpretation of the forensic results.
Despite gunshot residue being found at the scene at Friars Hill Road, the
evidence did not conclusively link the 11 accused to the shooting, and the
DNA analysis excluded all accused as contributors to the DNA found on the
firearms.
[42] The defence contends that the eyewitness testimony is contradictory and
fabricated, and that the witnesses did not corroborate one another; that some
witnesses adapted their versions under cross -examination; that the crime
scenes were compromised or manipulated; and that several accused were in
truth arrested elsewhere, including at South Rand Hospital and […] Hekla
Street, rather than inside the yard at 5[...] Friars Hill Road. The defence also
highlighted discrepancies in the evidence, such as the absence of blood trails
or cartridges in locations where the accused were allegedly shot or had fired
weapons.
[43] At the close of the State’s case, the defence applied for a discharge in terms
weapons.
[43] At the close of the State’s case, the defence applied for a discharge in terms
of section 174 of the Criminal Procedure Act. Section 174 requires the court to
determine whether there is evidence upon which a reasonable court, acting
carefully, might convict. The defence relied on the formulation in S v Shuping
and Others, 1 which remains instructive, subject to the refinement in S v
Lubaxa,2 namely that an accused is entitled to a discharge where a conviction
is possible only if the accused incriminates themselves. Importantly, the
enquiry is not whether the evidence is convincing, but whether it exists in a
form capable of sustaining a conviction. In S v Agliotti,3 the court emphasised
that it is neither prudent nor permissible to impose rigid constraints on the
evaluation of evidence at the section 174 stage, nor to artificially exclude
credibility considerations where they are material. The bar for rejecting
evidence on credibility grounds at this stage is high: the evidence must be of
such poor quality that no reasonable court could accept it. The application for
discharge was accordingly refused.
[44] The central issue is whether the State has proved beyond reasonable doubt
that the accused formed part of a coordinated armed criminal enterprise and
are liable, primarily through the doctrines of common purpose and joint
possession, for the offences charged.
Approach to the evidence
[45] It is trite that a court must evaluate the evidence holistically and not in a
piecemeal fashion. The proper approach requires a conspectus of all the
evidence, weighing the strengths and weaknesses of both the State and
defence cases and assessing the inherent probabilities. Whilst the State
bears the onus to prove its case beyond reasonable doubt, it is not required to
eliminate every conceivable doubt, only reasonable doubt. In S v Chabalala,4
the Supreme Court of Appeal emphasised that the court must weigh all
elements pointing towards guilt against those indicative of innocence and
determine whether the balance excludes reasonable doubt.
Conspiracy
[46] The State alleges that the accused conspired to commit robbery with
aggravating circumstances. It is well established that conspiracy may be
proved by inference from the totality of the evidence and need not be
proved by inference from the totality of the evidence and need not be
1 1983 (2) SA 119 (B); (CC 161/05) [2006] ZANWHC 5.
2 [2001] ZASCA 100; [2002] 2 All SA 107 (A); 2001 (4) SA 1251 (SCA); 2001 (2) SACR 703 (SCA).
3 (SS 154/2009) [2010] ZAGPJHC 129; 2011 (2) SACR 437 (GSJ).
4 2003 (1) SACR 134 (SCA).
established by proof of an express agreement. The following objective
features are of particular significance:
(a) the presence of fully assembled explosive devices requiring minimal
activation;
(b) the presence of petrol, consistent with post -offence destruction of
evidence;
(c) multiple stolen vehicles assembled at a single location;
(d) numerous high-powered firearms;
(e) the use of premises as a staging point or "safe house"; and
(f) an immediate and coordinated armed response to police presence.
[47] These facts admit of no reasonable inference other than that the perpetrators
had engaged in prior planning, allocated roles, and shared a common
unlawful objective. I am satisfied that the State has proved the charge of
conspiracy beyond reasonable doubt.
Common purpose
[48] The State relies on the doctrine of common purpose. The requirements for
liability on this basis are well established: presence at the scene, awareness
of the criminal conduct, and active association with the execution thereof. The
evidence demonstrates:
(a) immediate gunfire directed at the helicopter upon its arrival;
(b) multiple shooters operating from the same premises;
(c) coordinated flight from the scene while continuing to discharge
firearms;
(d) movement as a group to a secondary location; and
(e) continued armed resistance.
[49] It is not necessary for the State to prove which accused fired which shot. The
evidence establishes collective conduct indicative of active association. The
only reasonable inference is that the accused associated themselves with and
participated in the execution of the criminal enterprise.
Joint possession
[50] The principles articulated in S v Nkosi 5 and S v Mbuli 6 are applicable. The
evidence establishes that firearms were physically possessed by certain
members of the group and that those firearms were intended to be used on
behalf of the group as a whole. The group’s reliance on firearms to resist
police and facilitate escape demonstrates the requisite intention for joint
possession. Accordingly, all accused linked to the enterprise are liable for
possession of firearms, ammunition, and explosives.
Murder and attempted murder
Initiation of violence
[51] The evidence establishes that the suspects initiated the violence by firing at
the police helicopter. The police response was justified in terms of section 49
of the Criminal Procedure Act.
Common purpose liability
[52] The issue is whether the accused are liable for deaths resulting from the
ensuing confrontation. The group was heavily armed and prepared for violent
confrontation. The immediate resort to gunfire upon the arrival of law
enforcement underscores this. It is clear that the accused foresaw the
possibility that death could result from gunfire, crossfire, or explosives.
Despite such foresight, they persisted. This establishes dolus eventualis.
[53] Accordingly, the accused are liable for:
(a) the murder of co-perpetrators; and
(b) the attempted murder of police officers.
Linking the accused
Accused at Friars Hill Road
[54] In assessing the link, it is notable that several accused were arrested inside
the premises at 5[...] Friars Hill Road. They are linked through direct police
5 (CC33/2024) [2025] ZAMPMBHC 6.
6 (422/2001) [2002] ZASCA 78; 2003 (1) SACR 97 (SCA).
evidence. The forensic evidence proved inconclusive: GSR transfer could not
be excluded, and the DNA evidence did not support the State’s case. The
accused, barring accused 5, elected not to confirm the versions put to the
State witnesses. There is accordingly no credible evidence to contradict these
links.
Accused 4 and 9
[55] Accused 4 and accused 9 were arrested inside [...] Hekla Road following a
continuous pursuit from Friars Hill Road. Their presence at that location,
together with firearms and deceased persons, places them squarely within the
criminal enterprise.
The defence case
Accused 5
[56] The evidence of accused 5 is riddled with material contradictions and
improbabilities. It is inconsistent with his prior statements and unsupported by
objective evidence. It is rejected as false.
Mntambo
[57] The evidence of Ms Mntambo confirms that the helicopter arrived prior to the
shooting. It does not exculpate the accused and is of limited probative value.
Failure to testify
[58] Most accused elected not to testify. While there is no obligation to testify,
where evidence calls for an answer, the failure to provide one may strengthen
the State's case.
Evaluation
[59] Applying the approach set out above, the evidence is assessed with due
regard to probabilities, reliability, and the cumulative effect of all material facts
(S v Chabalala).
[60] The core factual findings are established beyond dispute:
(a) police conducted a coordinated operation at 5[...] Friars Hill Road
based on intelligence of a planned robbery;
(b) a helicopter and ground units approached the premises;
(c) gunfire was directed at police, including the helicopter;
(d) armed individuals exited the premises and fled whilst firing;
(e) a BMW reversed from the premises and shots were fired from it at both
the helicopter and the ground response team;
(f) suspects fled towards Hekla Road, where further shooting occurred;
and
(g) firearms, explosives, and stolen vehicles were recovered across the
scenes.
Eyewitness evidence
[61] The State relied on multiple law enforcement witnesses. While there are
discrepancies concerning the timing of the helicopter's arrival, the positions of
individual shooters, and certain sequences of movement, these relate to
peripheral aspects. On the material issue: whether armed persons at the
premises fired at police, the evidence is consistent and mutually
corroborative. The discrepancies are explicable by the differing vantage points
of witnesses in a dynamic, high -intensity environment and do no t affect the
core narrative.
[62] The probabilities overwhelmingly support the inference that persons at the
premises initiated the shooting. There is no credible evidence that police fired
first.
Continuity of events
[63] The events from Friars Hill Road to Hekla Road constitute a single,
uninterrupted course of action. The pursuit, continued shooting, and recovery
of suspects and firearms across locations confirm a continuous chain of
conduct.
Arrest evidence
[64] The defence challenged the location and circumstances of certain arrests.
While aspects of the arrest evidence reflect procedural shortcomings, these
do not displace the central evidential matrix. The evidence establishes that
arrests occurred within the operational continuum following the armed
confrontation. Accused 5 testified in support of the defence case that suspects
were arrested without reasonable suspicion. This version was demonstrated
to be internally inconsistent: accused 5 placed a different version of events
before the court during bail proceedings and altered details during cross -
examination. No reasonably possibly true version was advanced to explain
the presence of the accused within that continuum.
Forensic evidence
[65] The DNA evidence is not conclusive of presence, given the possibility of
transfer and contamination. Similarly, gunshot residue evidence is of limited
probative value in a multi-shooter environment, and in view of the possibility of
transfer among the arrested persons who were required to lie against each
other. The forensic evidence is therefore not decisively supportive. The
absence of conclusive forensic linkage does not, however, undermine the
inferential case arising from the totality of the evidence.
Crime scene criticisms
[66] Irregularities in crime scene management were identified. While these are
concerning, they do not affect the core facts that armed resistance occurred,
firearms were discharged, and suspects fled while continuing to shoot.
[67] Considering the totality of the evidence:
(a) the State’s case is coherent, corroborated, and probable;
(b) the defence case is either absent or unreliable;
(c) no reasonable innocent explanation exists on the evidence; and
(d) the evidence establishes beyond reasonable doubt that the accused
were participants in a coordinated armed criminal enterprise who
foresaw the lethal consequences of their conduct.
Order
[68] In view of the above, I find as follows:
(1) Accused 1 to 10 are each found guilty on:
a. conspiracy to commit robbery with aggravating circumstances
b. murder (all applicable counts)
c. attempted murder
d. possession of prohibited firearms
e. possession of ammunition
f. possession of explosives
(2) Accused 11 was discharged on several counts; however, the evidence
indicated that he was found in possession of an unlicensed firearm and
ammunition and could not tender an explanation or produce a relevant
licence.
(3) Accused 11 is found guilty on the remaining counts relating to
possession of a firearm and ammunition.
_____________________________________
S C MIA
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Appearances:
On behalf of the State : Adv R Barnard
: Adv R Phungo
Instructed by : DPP
On behalf of accused 1–5 and 10 : Adv. Van den Heever
On behalf of 6-9 and 11 : Adv Y Britz
Instructed by : Hadebe Attorneys
Dates of hearing :19 Oct 2023
20 Oct 2023
23 Oct 2023
24 Oct 2023
25 Oct 2023
26 Oct 2023
27 Oct 2023
30 Oct 2023
31 Oct 2023
8 Apr 2024
18 June 2024
24 July 2024
25 July 2024
26 July 2024
29 July 2024
30 July 2024
31 July 2024 - inspection in loco
6 Aug 2024
20 Aug 2024
22 Aug 2024
23 Aug 2024
27 Aug 2024
28 Aug 2024
29 Aug 2024
30 Aug 2024
7 Oct 2024
9 Oct 2024
10 Oct 2024
11 Oct 2024
14 Oct 2024
15 Oct 2024
17 Oct 2024
24 Oct 2024
4 Nov 2024
5 Nov 2024
6 Nov 2024
7 Nov 2024
8 Nov 2024
12 Nov 2024
13 Nov 2024
14 Nov 2024
20 Nov 2024
9 Dec 2024
3 Feb 2025
4 Feb 2025
5 Feb 2025
7 Feb 2025
4 March 2025
14 March 2025
18 March 2025
1 July 2025
14 July 2025
1 Sept 2025
20 Oct 2025
21 Oct 2025
22 Oct 2025
23 Oct 2025
17 Nov 2025
18 Nov 2025
19 Nov 2025
20 Nov 2024
15 Jan 2026
Date of judgment :31 March 2026