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

 

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE: BHISHO

CASE NO.: CC 35/2007

 

In the matter between:

 

THE STATE

 

and

 

MSOBOMVU QHINGA                                                                   1^st ACCUSED

 

LUNGILE JAMISO                                                                           2^nd ACCUSED

 

CAMAGU ZIMELA                                                                           3rd ACCUSED

 

MNCEDISI TITSHALA                                                                   4TH ACCUSED

 

LUVUYO MCAPHUKISI                                                                  5th ACCUSED

 

LIZO LUMBE                                                                                  6th ACCUSED

 

LINDLE MAGI                                                                                 7th ACCUSED

 

JUDGMENT

 

DHLODHLO ADJP:

 

1. The seven accused are before a Judge sitting with an Assessor.

 

2. They are charged as follows:

 

2.1    Count 1 - robbery with aggravating circumstances.

it is alleged that on or about the 12th day of July 2006, at or near Newlands Area in the magisterial district of Mdantsane, they unlawfully and intentionally assaulted Thandile Mgqwanca by using force and violence to induce submission by the said Thandiie Mgqwanca, took and stole from him certain items, namely, a 9mm BxP semi-automatic firearm with serial number RSA 5[...] and thirty (30) rounds of ammunition, his property and / or being in his lawful possession, and did rob him of these items, aggravating circumstances being present, as they wielded a firearm.

 

The charge is accompanied by a warning to the effect that, in the event of a conviction, the provisions of s 51(2) of the Criminal Law Amendment Act[1], relating to minimum sentences, will be applicable, as aggravating circumstances were present during the commission of the offence.

 

2.2    Count 2 - attempted murder:

in that on or about the date and at the place referred to in count one, they unlawfully and intentionally assaulted Thandisizwe Somtsora, a male person, by shooting him with a firearm, intending to kill him.

 

The charge is accompanied by a warning to the effect that, if they are convicted as charged, the provisions of s 51(2) of the Criminal Law Amendment Act, relating to the minimum sentences, will be applicable.

 

2.3   Count 3 - robbery with aggravating circumstances:

in that on or about the date and the place referred to in count one, they unlawfully and intentionally assaulted Thandisizwe Somtsora by using force and violence to induce submission by the said Thandisizwe Somtsora, they took and stole from him certain items, namely a 9mm Norinco firearm with serial number 6[...] and eighteen (18) rounds of ammunition, being his property or in his lawful possession, and robbed him of these items.

 

The charge is accompanied by a warning to the effect that, if they are convicted, the provisions of s 51(2) of the Criminal Law Amendment Act, relating to minimum sentences, will be applicable, as aggravating circumstances were present during the commission of the robbery.

 

2.4   Count 4 - robbery with aggravating circumstances:

in that on or about the date and at the place referred to in count one, they unlawfully and intentionally assaulted Nomathamsanqa Edith Tini by using force and violence to induce submission by the said Nomathamsanqa Edith Tini, took and stole from her cash amounting to two and twenty six thousand, nine hundred and ten rand (R226 910,00), her property or in her lawful possession, thus robbing her of the amount. It is alleged that aggravating circumstances were present, as the accused wielded firearms.

 

The charge is accompanied by a warning to the effect that, if they are convicted, the provisions of s 51(2) of the Criminal Law Amendment Act, relating to minimum sentences, will be applicable, as aggravating circumstances were present during the commission of the robbery.

 

2.5   Count 5 - robbery with aggravating circumstances:

 

in that a or near the place and on or about the date referred to in count c e, they unlawfully and intentionally assaulted Joseph Tshigod . and by using force and violence to induce submission by the said oseph Tshigoda, took and stole from him a Toyota bakkie with registration number C[...] 6[...] E[...] valued at R61 800,00 (sixty one thoi ;and and eight hundred rand) which was his property or in his lawfi possession, thus robbing him of the said vehicle, it is further c eged that aggravating circumstances were present, as they wiei ed firearms,

 

The charge is accompanied by a warning to the effect that, if they are convicted, the provisions of s 51(2) of the Criminal Law Amendment Act, relating to minimum sentences, will be applicable, as aggrevating circumstances were present during the commission of the robbery.

 

2.6    Count 6 -attempted murder:

in that o, or about the date and at or near the place referred to in count o, they unlawfully and intentionally attempted to kill Mthobeli Mdingi, an adult male person, by shooting him with a firearm.

 

The charge is accompanied by a warning to the effect that, if they are convicted, the provisions of s 51(2) of the Criminal Law Amendment Act, relating to minimum sentences, will be applicable.

 

2.7    Count 7 relates to unlawful possession of a Star 9mm Parabellum pistol serial number 1[...].

 

Count 8 relates to unlawful possession of seven rounds of ammunition.

 

Count 9 relates to unlawful possession of a semi-automatic firearm Norinco 7.62 x 25mm with its serial number erased.

 

Count 10 relates to unlawful possession of thirteen (13) live rounds of ammunition.

 

3. Counsel for the State - Mr A C Erasmus conceded during argument before verdict that, in as far as counts seven, eight, n[...] and ten are concerned, evidence was led that firearms were used in the commission of the offences charged. The counts refer to specific firearms and ammunition. He conceded that no link between the accused and the said firearms was established,

 

4. The ten charges were put to the seven accused persons at the commencement of the thai. They all pleaded not guilty to all the counts.

 

5. Mr Moolman who represented the first three accused thenJ confirmed the pleas and indicated that each would reserve the basis of his defence.

 

6. Mr Magqabi who represents accused four and five confirmed the pleas and indicated that his clients elected not to disclose the bases of their defences.

 

7. In respect of accused six and seven Mr Jakavuia who represented them then, confirmed their pleas and indicated that they elected to remain silent.

 

8. It is common cause that on 12 July 2006 shortly after 07h00 social grants were being paid inside a community hall at Newlands (also known as Nxarhuni) in the magisterial district of Mdantsane outside East London by employees of A[...] P[...] C[...] M[...]. There were about sixty beneficiaries of the grants inside the hall.

 

9. Five security guards employed by Khulani Security Company were on duty at the pay centre to secure the money. They are Thandile Mgqwanca, Thandisizwe Somtsora, Andries, Stamper and Blom. The hail is fenced off and has two doors - one in front and the other one at the back. The latter door was open. Two gates lead to the premises. There is one motor gate and a small one with two toilets next to it. At the back there are two toilets which are made of corrugated iron.

 

10 Security Officer Thandile Mgqwanca was posted at the small gate inside the premises. He would check those persons who entered the premises to ascertain whether they were allowed to enter. He was being assisted by a local person who was a committee member. People were allowed to enter the premises but when the hall was full Mgqwanca prevented other people from entering the premises. Later Mgqwanca allowed another group of beneficiaries to enter the premises. When the hall was full the gate was closed again,

 

11. Mgqwanca started to allow the third group of social grants recipients who were about five, to enter the premises. As he was about to receive the card of the second one, he noticed that some one was pointing a firearm at him. He was pushed inside the premises by one strange man. Two other strange men harassed and insulted him and took a firearm from his possession, One of the men was to his right and another to his left. A security guard who was at the other gate sneaked away and went round a corner. The strange men took Mgqwanca round the comer where beneficiaries move when they are to receive money. When Mgqwanca and his assailants went round the corner he could no longer see the security officer who had been at the other gate.

 

12. As Mgqwanca was being driven round the corner, one security officer emerged. The assailant who was to Mgqwanca's left side fired a shot at the security guard who was appearing at the corner. That security guard fell to the ground. The assailants drove Mgqwanca into the hall. Beneficiaries were already at the corner. Mgqwanca was caused to kneel down. One of the assailants ordered Mgqwanca to take off his bullet-proof vest and assisted him to do so. That assailant covered Mgqwanca's face with his (Mgqwanca's) jacket and ordered him to lie down. From that time Mgqwanca could only hear but not see what was happening. He heard someone say that money must be released. He later heard a machine ringing as it does when it releases money. He later heard the voice of someone who was demanding a key. Mgqwanca heard footsteps and voices when the assailants were walking out and later heard the sound of a running motor vehicle engine. He later heard the sound of a motor vehicle which was being driven away. When he pulled his lumber jacket off his face he saw that inside the hall were only pay masters and himself.

 

13.       Mgqwanca walked out of the hall and saw a van (bakkie) which was used by technicians. The van had a canopy whose door was open. He saw guys inside it, Mgqwanca proceeded to the security officer who had been shot in the leg but was alive. That security officer was their supervisor Thandisizwe Somtsora. Mgqwanca took a telephone from Somtsora's pocket and called their office and reported what happened.

 

14.       Mgqwanca said that when he first saw the three strange man they were pointing firearms (handguns) at him. He was carrying a BxP firearm. He said that some people call it uzi. He did not have a good look at the strange man. When firearms were pointed at him he was shocked and was unable to look at their faces, He heard shots fired from the other side of the hall when he was being driven to the corner, He did not remember the serial number of his firearm. Mgqwanca said that the magazine of his firearm contained twenty five (25) rounds of ammunition and that the other magazine which also contained twenty rounds of ammunition was in the bullet proof vest.   The firearm, the magazine and the rounds of ammunition belonged to his employer Khuiani Fidelity. Mgqwanca said that the assailants hit and kicked him with booted feet on his thigh, forcing him to lie down. He would be unable to identify any one of them.

 

15.       Under cross-examination, Mgqwanca said that before his supervisor Thandisizwe Somtsora was shot in the right thigh, he (Somtsora) appeared running holding a firearm. Under re-examination, he said that they allowed beneficiaries to enter the premises at 07h30.

 

16.         On the morning of the day in question at about 08h00 Mr Joseph Tshiogoda who is employed by A[...] P[...] C[...] M[...], was at Newlands. He is a system controller and repairs machines which release money. He was on duty so that he would repair a machine if it would not release money. A shortwhile after Tshiogoda had entered the hail at Newlands he heard gunshots and people were screaming and running for cover. He said that he saw four men who entered the hail holding guns. The men demanded money from paymasters. The paymasters opened dispensor machines which Tshiogoda had repaired. The men took all the money which was contained in boxes into their black bag.

 

17. After taking the money the men demanded keys to their cars, Tshiogoda gave them the key to his Toyota Hilux van because a firearm was pointed at him. The men took the key and left the hail. Tshiogoda saw the van being driven in the direction of Mdantsane, He said that he was standing near the money machines when the men entered the hall. He said that the men were wearing masks. He could not identify them. When the men demanded money and keys they spoke isiXhosa. Tshiogoda said that he understands a bit of isiXhosa. The registration number of the 2000 model van is C[...] 6[...] E[...]. It is worth R61 800,00. The vehicle was recovered in Mdantsane near the Roman Catholic Church. Tshiogoda said that some shots were fired outside the hall.

 

18.       Under cross-examination, Tshiogoda re-iterated that four men entered the hall. He said that the assailant who pointed a firearm at him was masked and that all the men he saw were masked. He further said that when he was ordered to hand over the key he was lying down.

 

19.       Thandisizwe Somtsora who is employed by Khulani Security Company as a security guard was the supervisor of his security company guards on the morning in question. He was posted inside the hall where beneficiaries were being paid. At about 08h30 Somtsora heard noise of screaming people outside the hall. He became curious and attempted to walk out of the hall through the front door but it would not open. It appeared to him that the door was locked from outside. He decided to use the back door, As he was proceeding towards this door he saw security guards who were his colleagues, running carrying their firearms.   He thought that the security guards were chasing something and was curious to know what was happening outside the hall. He walked out of the hall and drew his firearm, He went round a van which was parked near the building.

 

20. As he was walking he was shot from behind in the left thigh. He heard several other shots. As a result of the gunshot he sustained a fracture and a broken nerve. While he was lying down someone came to him and removed his handgun and handcuffs. A man came to him later to check whether items such as a firearm had been taken. He was admitted in hospital for three days and was discharged on the fourth day.

 

21.       While Somtsora was lying on the ground some people came out of the hall, tried to start a condor motor vehicle which was used by A[...] P[...] M[...] staff members. Those people were unable to start the vehicle. Those people returned to the hall to demand keys for the van he was lying next to. They returned and attempted to start the van but were unable to start it. One of the men shouted saying:

 

“This is also a driver. He must get up and start the bakkie himself “

 

Somtsora told them that he could not get up to start the van. He told them to insert an immobilisers in the dash board. They were able to start the van, got into it and drove away. He said that he noticed that the men were panicking. He lay on the ground for 30 minutes before an ambulance came to take him.

 

22.       Somtsora remembered where he posted his four colleagues on that morning.  He posted Thandiie Mgqwanca at the small gate.  Lufefe Andries was posted at the motor gate, Sydney Blom at the back door through which recipients of grants entered. Hutton Stamper was to move around the pay point.

 

23.       While Somtsora was lying on the ground two robbers talked to him. One of them was armed with a pistol, pointed it at him (Somtsora) when he was searching him. That man said that they were not there to shoot but to take money. Somtsora said that, that man had police boots on, a blue jean and a combat top used by the police. On his head he wore a woollen hat known as "botyo" and was light in complexion.

 

24. Another man came to Somtsora while other men were inside the hall. At that stage he had been disarmed. This man spoke isiZulu and was panicking when they were trying to start a vehicle asking what was causing the delay. Somtsora said that he had a good look at this man. The man wore a parabeflum pair of shoes. His pair of trousers and his jacket were brown in colour. He was dark in complexion and slender.

 

25. Somtsora's firearm which was taken is a Norinco 9mm pistol - serial number 6[...] which contained eight rounds of ammunition in its magazine.  In another separate magazine there were eight rounds of ammunition. This magazine was also taken by the robbers. The firearm belonged to Khulani Security Company.

 

26.       Somtsora attended an identification parade. He said that, because there were many people on the parade, he did not identify any person.

 

27. Ms Nomathamsanqa Edith Tini is employed by A[...] P[...] C[...] M[...]. She is the team leader. On 12 July 2006 at about 07h30 she and others were paying out social grants at Nxarhuni (Newlands area). While they were inside the hail there was noise outside the hall. A security guard who was inside the hall went out to investigate the noise and gunshots. Another security guard who was outside the hall entered the hall being held by a certain man. Tini said that they ran and hid under a table. The man who drove the security guard into the hall went to where Tini and others were and ordered them to take out money.

 

28. Tini got up and produced a key and shouted to a colleague to come with the key. The men who entered the hall were carrying a bag and proceeded to the table. Tini said that she took out money and put it inside the bag. The men went out of the hall. One of thern returned to the hall and approached an "IT" guy to give him a key. Tini said that the men went away.

 

29. According to Tini, before the commotion started there were about sixty beneficiaries inside the hall. She said that she saw three men enter the hall with the security guard and that when they demanded money from her, their firearms were pointed at her. She was wearing a red apron. One man took her out from under a table, One of the men was with the security guard.

 

30. Tini described a money machine as a steel box which has four doors, each door with a padlock. Inside a big box there are small plastic containers where money is kept. A button is pressed in order to take out money. The men ordered Tini to press the button.

 

31. Tini said that paymasters on that day were Luvuyo and Boutcher and that the men took out containers into their bag. According to her no shots were fired inside the half She said that she sustained no injuries. She did not know how much money was taken. She thought that the incident occurred between 07h30and 07h45.

 

32. Cheryldene Boutcher was employed by A[...] P[...] C[...] M[...] on 12 July 2006. When she testified she was no longer employed by the company. She was part of the team which paid out social grants on the day in question. At about 07h45 they were already inside the hall and they heard shots outside the hall. There were elderly people inside the hall. When shots were fired beneficiaries fell over the chairs and hid themselves. Some lay on their stomachs on the floor.

 

33. According to Boutcher four robbers entered the hall. One of the robbers pushed a security guard and caused him to lie on the floor. The robbers asked where paymasters were. They found the team leader because she wore an A[...] P[...] apron and they ordered her to open the machine. The team leader screamed and called one of the paymasters.

 

34. Boutcher was also wearing a blue apron. She was grabbed on her shoulders. A firearm was pointed towards her head as she was ordered to open the machine without delay. The team leader also opened the machine. Boutcher took out from the machine canisters or money containers and put them inside a black bag. After the robbers had taken the bag they ordered Boutcher and others to lie down on their stomachs. The robbers then left.

 

35. According to Boutcher all the four robbers inside the hall were armed. One carried a rifle and others carried what appeared to be 9mm pistols. She said that the robber who was in front of her wore a balaclava hat. Because the incident occurred very fast, she was unable to identify the robbers.

 

36. Sydney Blom is a security guard employed by Khuiani Security Company. He was on duty at the Newiands pay centre on the morning of 12 July 2006. He patrolled at the back of the hall. While he was patroliing he heard a scream from the front side of the hall. He did not know then what was happening but suddenly saw two security guards running towards his direction. As his colleagues were explaining to him what was happening he saw three men running towards them, These men were firing shots in their direction. As Blom was running away to take cover he fell down and his firearm remained on the ground. He remained on the ground and watched the three strange men as they chased his colleagues Stamper and Andries.

 

37. Blom saw the three men return. One of the three men returned with another man he had not seen earlier. He heard the strange men saying that they should go as they were getting fate. Blom got up and saw a van being driven round the corner at high speed. He said that the three men who chased his colleagues were about twenty paces (indicated) from him and that all the three men were armed with 9mm handguns. He indicated the distance the three strange men ran behind his colleagues as about 100 metres. The other strange man he saw return with one of the three men was also carrying a firearm. He was unable to identify the strange men because of the distance.

 

38. Under cross-examination, Blom said that he did not know how many men boarded the van and that the three men he saw were not those who entered the hall. When those who were chasing returned they asked whether all the money had been taken. Blom said that one of the strange men wore a reddish hat and that he (that man) would sometimes cover his head. One wore a greyish skipper shirt. Another one wore a lumber jacket. A tall strange man appeared to be addressing Stamper and Andries in isiZulu saying "Woza la". Under re-examination the Court Blom said that none of the security guards fired back at the strange men,

 

39. Mtobeli Mdingi is a Sergeant in the South African Police Service and is stationed at Vulindlela in Mdantsane. On 12 Juiy 2006 at about 08h20 he was on duty. They received a message as a result of which he and his colleagues rushed to Newlands in two marked police vehicles.

 

40. Sergeant Mdingi and his colleagues stopped a combi motor vehicle. On their return to the police vehicles a white van with a canopy appeared and shots were fired repeatedly from that van. Mdingi and his colleagues returned fire. The van bumped one of the police vans, drove off and disappeared. Mdingi said that the van was about 100 metres away from the police vans when shots were fired. According to Mdingi many shots were fired from the van. The canopy of the van was open. There were passengers in the cabin and on the back of the van. Mdingi did not know how many passengers there were. He said that they tried to chase the van but they couid not see it as it had disappeared.

 

41. Where and how the accused were arrested was dealt with in the trials -within - a trial, rulings of which form part of the record.

 

42. The first accused Msobomvu Qhinga toid the Court that on 12 July 2006 he was not at Newlands and that he could not remember where he was because it has been a long time. He denied that-he committed robbery on that day. He said that what the police wrote in his statement (confession) did not come from him. Under cross-examination, Qhinga admitted that in his bail application he said that he bought a car from Fraser's garage for R23 000,00 at the end of July (no year was given). He denied that he bought the car with his share of the spoils.

 

43. The second accused Lungiie Jamiso denied that he committed robbery on 12 July 2006. He did not know where he was on this date but he would go to the Highway taxi rank where he sold his goods. He said that he has been in custody for a long time. At the identification parade Jamiso was not identified. He said that before he appeared before the Magistrate who obtained his statement the policeman who escorted him read a document to him written in English which the policeman translated into isiXhosa.

 

44. The third accused Camagu Zimela denied that he was involved in the robbery which took place at Newlands on 12 July 2006. He said that he could not say where he was on this date because it is a long time ago. He would go and sell his cleaning materials and would visit his customers.

 

45. Mncedisi Titshala, the fourth accused, was a taxi driver prior to his arrest. He said that what is contained in the statement he allegedly made did not emanate from him. He said that he was not one of the men who committed robbery at Newlands and that he did not attempt to kill Thandisizwe Somtsora. He could not remember where he was on 12 July 2006. He operated a taxi on all days except on Sundays. He said that he worked from 05h00 to 19h00. The taxi would be back at its owner's place at 19h00.

 

46. The fifth accused Luvuyo Mcaphukisi worked for Buffalo City Municipality in East London at the time of his arrest. He said that he was not present at Newlands on 12 July 2006, that he never attempted to kill someone or people there and that he did not possess a firearm or ammunition. Mcaphukisi said that he was told by Mr Sityoshwana where to point out during the alleged pointing out. He further said that on 12 July 2006 he was at Dr Theron's consulting rooms at the Highway in Mdantsane and was attended to by a young medical doctor very early in the morning at about 08h00. He said that he waited there but did not remember the time when he was attended to. He did not go to work on that day. He would not dispute that a doctor saw him after 09h00. According to Dr Edward H van Rensburg's report 'marked exhibt ULT handed into Court by agreement, the doctor saw Mcaphukisi on12 July 2006. Dr van Rensburg did not know the exact time but said that it couid have been after 09h15. The exact time when a patient is seen is not recorded. According to the doctor's report Mcaphukisi complained of general body pains but was not found to be seriously ill. Asked whether a person who was not involved in the robbery couid make a pointing out, Mcaphukisi said that he disputed it because he was not present where the robbery took place. He said that he did not know the place (Newlands) and that he first went there when the police took him there.

 

47. The sixth accused Lizo Lumbe denied that he committed robbery and other offences at Newlands. He said that on 12 July 2006 at about 07h00 he was at Dora Nginza hospital in Port Elizabeth. He had not been seen by that hospital before that day. Lumbe said that he went to the hospital because of headache, that his temperature was high and his whole body was hot. His temperature and blood pressure were tested. He however left the hospital before he received medication because he was hungry and his body was no longer hot. Responding to the question "why is this aiibi surfacing for the first time towards the end of this trial?", Lumber said that it was because it was the first time he was questioned about it. He said that he informed the police at Group 8 that he was in hospital on 12 July 2006 and they said that he would tell the Court about it. He said that he first informed his Counsel about the alibi when he consulted him before he gave evidence-in-chief in the main trial.

 

(After a short adjournment Mr Pango who represents Lumbe stated that he would not call Dr Vehbi who had been subpoenaed from Dora Nginza hospital to be Lumbe's witness, Mr Erasmus applied for leave to re-open the State's case in order to call Dr Vehbi because the defence had introduced new evidence. Mr Pango did not oppose the application and it was granted).

 

48.    Dr Aydin Vehbi is a senior Medical Superintendent at Dora Nginza hospital in Port Elizabeth. His evidence is briefly as follows: Dora Nginza hospital deals only with mother and child patients and emergency cases. Lumbe, having born in 1981, is not a child. Their definition of child is a person under 12 years of age. The hospital deals with patients who have been referred to the hospital by medical doctors or hospitals and those who were seen by the hospital before. The sticker on the folder which purports to contain Lumbe's report of 12 July 2006, marked 'exhibit TT' was not used in 2006. A different sticker was used at that time. Lumber would have been dealt with as an emergency case had he been at the hospital on 12 July 2006. The casualty register for that day does not show Lumbe's name. The report shows that Lumbe was at the hospital at 07h41 on 12 July 2006 and that he was attended to by assistant nurse N P Ntshinga. There was no person employed by the hospital known as N P Ntshinga on 12 July 2006.

 

49. Lindile Lincoln Magi, the seventh accused, denied that he committed robbery at Newlands on 12 July 2006. He said that on that day he was doing his usual work at his spaza shop which he co-owns with Madoda Lennox Cingo. He also trained young cricketers from Monday to Thursday. Magi denied that he made the statement in which he implicated himself. He said that someone would tell the Court that he was busy in his spaza shop on the day in question. (Mr Pango indicated that he would call Mr Madoda Lennox Cingo as Magi's witness. On the following day, the 09th December 2009 Mr Pango closed the case of Magi without calling Madoda Lennox Cingo).

 

50. The Court has to consider the evidence adduced. The assailants who robbed and committed other offences at Newlands were not identified. The State relies on statements and some pointings out the accused made in which they implicated themselves. Trials-within-a trial in respect of the seven accused were held. Rulings were that the statements and the pointings out were admissible in evidence. The rulings form part of this record. The Court rules finally that the statements and pointings out in respect of the accused are admissible in evidence.

 

51.1. The first accused Msobomvu Qhinga's pointing out statement is marked 'exhibit N\

 

51.2. His confession is marked 'exhibit L.

 

51.3. The second accused Lungile Jamiso's confession is marked 'exhibit 0'. Jamiso stated before the Magistrate that the incident occurred on 11 August 2006 but the events he referred to are clearly those of 12 July 2006.

 

51.4. The third accused Camagu Zimela's confession is marked 'exhibit CC(2)'

 

51.5. Mncedisi Titshala, the fourth accused's statement is marked 'exhibit GG'.

 

51.6. Luvuyo Mcaphukisi (accused No. 5's) pointing out with statements is marked 'exhibit QQ'.

 

51.7. The sixth accused Lizo Lumber's confession is marked 'exhibit RR',

 

51.8. The seventh accused Lindiie Lincoln Magi's confession is marked 'exhibit SS'.

 

52.       Section 209 of the Criminal Procedure Act[2] provides:

 

"An accused may be convicted of any offence on the single evidence of a confession by such accused that he committed the offence in question, if such confession is confirmed in material respect. Or, where the confession is not so confirmed, if the offence is proved by evidence, other than such confession, to have been actually committed."

 

53.       A confession made by any person shall be admissible as evidence only against the person who made it.[3]

 

54.       The confession of the first, second, third, sixth and the seventh accused show that they conspired and acted with common purpose to commit the robbery at Newlands, Some or all of them carried firearms and they knew about this.

 

55.       There is undisputed evidence that firearms were pointed at paymasters inside the Newlands hall, that a sum of money was robbed, that shots were fired by some assailants at some security guard there, that security guard Thandile Mgqwanca was robbed of a firearm and ammunition, that security guard Thandisizwe Somtsora was shot by one of the assailants in the thigh and that he was robbed of his firearm and ammunition by one of the assailants. That Joseph Tshiogoda was robbed of his company van is also not disputed, nor is the fact that the van was later abandoned near the Roman Catholic Church at unit n[...] in Mdantsane.

 

56.       The fifth accused Luvuyo Mcaphukisi pointed to Captain Frederick Johannes Kotze a place near toilets where a security guard was held up at gunpoint and his rifle was taken. This happened after Mcaphukisi had pointed out a hall. He further pointed out a place where the van of A[...] P[...] was parked and also a place where a condor motor vehicle was parked and it would not start. He mentioned that some of the security guards fled and that one was shot. He also pointed out a door at the back of the hall where they entered. He said that "They then took a bakkie and escaped with it (Toyota Bakkie) with a canopy ..." on their way back Mcaphukisi pointed out a place near the King Williamstown - East London highway on the tarred road where they met two SAPS (South African Police Service) motor vehicles which tried to block the road, but they managed to get away between the motor vehicles.

 

57.       The first accused Msobomvu Qhinga led Superintendent Nkosiyane to a house in Mdantsane where the robbery was planned. Qhinga showed Superintendent Nkosiyane a hall and told him that he and five friends pointed firearms at four security guards at the gate. He said that he was the only one who was not armed as he was carrying a huge bag in which money would be carried. He said that there were many boxes of money and that some were empty. He also pointed out a church known as Christ the King where a van was abandoned. Lastly Qhinga pointed out a house in unit s[...] where they cut money boxes and then shared the money.

 

58.       The fourth accused Mncedisi Titshala admitted that he accompanied some people to a place near Newlands on a date which he did not remember. He left them there and drove the car back to his house during the early morning of that day. Later on that morning someone called him on his cellphone asking him to return to where he had left the two men. The caller intended to take a grinder from the boot of the car. Titshaia returned to that place where the calfer removed the grinder from the boot of the car after which he returned to his home in Mdantsane with the car and arrived there at about 06h30. At about 08h30 on that morning someone called him on his cellular phone asking him to come and pick them up at unit n[...] near the Roman Catholic Church. He drove to the church where he found the two men he had earlier that morning accompanied to Newlands together with "other guys walking in the street and they held a big black bag ..   Titshala stopped the vehicle he was driving near these people. He saw that they were carrying small suitcases. All these items were placed in the boot of the car Titshala was driving. He was told to drive to a house at unit 1[…] in Mdantsane and wait for them there. None of those people got into the car. He drove towards the house and stopped outside the house. Those people arrived.  Items were taken out of the boot. Titshala could not see what was inside the bags and suitcases. The guys entered the house after which Titshala also entered the house. The bag and suitcases were in the dining room of that house. Titshala was told to wait in the kitchen and could hear the opening of the bags. When they finished they called him and he received R4 000,00 from one of the guys. They were later told to disperse. Titshala said that he used the money for his needs and to settle his debts. It is clear from the events that the date Titshala could not remember is the 12th July 2006.

 

59. Mr Popo who represents the first three accused argued that the Court shouid rule finally that the confessions of his clients are not admissible in evidence as their right to legal representation was not explained or not properly explained and that the statements were not made freely and voluntarily without undue influence, as his clients had been threatened, assaulted and tortured, He also argued that, had his clients confessed freely and voluntarily without undue influence, their statements would not differ from uncontested facts before this Court. Trtis argument does not hold water. A suspect is free to tell a Justice of the Peace or a Magistrate what he / she (the suspect) wants to tell him / her. Mr Popo referred to Hlantlalaia and Others v Dyantyi and Another[4] in which the question to be determined was whether an irregularity had occurred in the appellants' criminal trial because of an alleged failure to inform and explain to them their rights, and if so what effect such irregularity had on the outcome of the thai. It appears that in that case the appellants said to the Magistrate that they had no money "and that they never indicated that they needed a State Attorney other than that they got no money to pay for a lawyer". The appellants were not informed of their fundamental right. That case is distinguishable from the present case in which the right to iegai representation was explained.

 

60.       The sixth and the seventh accused raised defences of alibi during their evidence-in-chief during the main trial. If they had not been to the pension pay point at Newlands they would not have narrated what took place there, how they escaped the scene in a van which was abandoned near the Roman Catholic Church in Mdantsane and how the money was shared in a house in Mdantsane.

 

61.       The fifth accused Luvuyo Mcaphukisi pointed out some spots to Captain Kotze at Newlands and on the King Williamstown - East London highway. He would not have done this had he not been there on the day of the robbery.

 

62.       The Court finds that the first, second, third, fifth, sixth and the seventh accused are the assailants who fired shots, shot Thandisizwe Somtsora, committed robberies at Newlands, escaped in the white van, abandoned it near the Roman Cathoiic Church and shared money in a house at unit 1[…] in Mdantsane. They must have foreseen the possibility that the firearms they were armed with would be used, before, during and after the robbery to threaten, to induce submission, to protect items robbed and to shoot and even kill those who would resist or stand in their way.

 

63.       The fourth accused Mncedisi Titshala did not admit that he was one of the assailants at Newlands and that he was one of those who committed offences there. According to him his role is as stated above. There is a strong suspicion that he knew that pension money would be robbed at Newlands, In his statement he does not state whether or not he asked the two persons he accompanied to Newlands where they were going to, why they asked him to return to Mdantsane with that car, why they needed a grinder which was in the boot of the car, what the black bag and suitcases contained and why he was given R4 000,00. However it cannot be said that it has been proved beyond reasonable doubt that he conspired with others to commit the robbery or that he know that the bags and the suitcases which were put in the boot of the car he was driving near the Roman Catholic Church at unit n[...] in Mdantsane contained money which had been robbed at Newlands earlier on that morning, It can also not be said with certainty that the R4 000,00 he received was his share from the money which had been robbed and that the money was part of the money which was robbed at Newlands.

 

64. According to the indictment R226 910 was robbed. Ms Nomathamsanqa Edith Tini, the complainant on this count, did not know how much money was taken by the robbers at Newlands on the 12th July 2006. There is however sufficient evidence that Ms Tini and her colleagues were robbed of an amount of money.

 

65.    VERDICT

 

            The Court finds unanimously that:

 

65.1   Accused numbers one, two, three, five, six and seven are guilty as charged on counts one, two, three, four, five and six.

 

65,2  Accused numbers one, two, three, five, six and seven are found not guilty on counts seven, eight, nine and ten.

 

65.3  Accused number four Mncedisi Titshala if found not guilty on all counts.

 

A E B DHLODHLO

JUDGE OF THE HIGH COURT

ACTING DEPUTY JUDGE PRESIDENT

11 MARCH 2009

 

FOR THE STATE:	MR A C ERASMUS
FOR ACCUSED ONE, TWO. AND THREE:	MR MB POPO
	after Mr Mooiman had withdrawn.
FOR ACCUSED FOUR AND FIVE:	MR V MAGQABI
FOR ACCUSED SIX AND SEVEN:	MR S V PANGO

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