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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1)   REPORTABLE: YES/NO

(2)   OF INTEREST TO OTHER JUDGES: YES/NO

(3)   REVISED. YES/NO 

                                                                                    CASE NO: CC 48 / 2019

 

In the matter of

 

In the matter between

THE STATE

and

QUOMANE EXECUTIVE LETSHOA                                               Accused No 1

LIZZY MAPHEFO LEKGOTOANE                                         Accused No 2

MANOKO STANFORD DIHANGOANE                                          Accused No 3

 

JUDGMENT ON THE MERITS

 

MORRISON AJ:

 

[1]          Quomane Executive Letshoa was indicted as Accused No. 1 together with Lizzy Maphefo Lekgotoane as Accused No. 2 and Manoko Stanford Dihangoane as Accused No. 3 in respect of the offences set out infra in paragraph [14]. Accused No 1 however died after having been served with the indictment and prior to the date of trial in the Pretoria North Circuit Court on 7 October 2019.

 

[2]          The State did not file an amended indictment excluding Accused No.1 as it was anticipated that since the investigation records and other documentation filed in the police docket referred to the accused as numbers 1, 2 and 3,  any confusion would be obviated if the South African Police witnesses referred to them by their previous   accused numbers during the State witnesses’ testimony.

 

[3]          Prosecuting Counsel was Mr A Koalepe and Mr M Madira represented both Accused Nos 2 and 3 throughout the trial. Both Counsel filed Heads of Argument on the merits to which I have had due regard.

 

[4]          In casu the State case and the Defence case are strikingly disparate and in conflict with one another. This necessitated a comprehensive summary and analysis of all the material evidence to determine where the truth lies and this is set out in detail infra.

 

[5]          Succinctly summarised, the events which led to the prosecution and trial of Accused No 2 and 3 for alleged commission of the offences set out in counts1 to 16 in the indictment are that on 10 December 2017 the two deceased and colleagues employed by Fidelity Cash Solutions were on duty delivering and collecting cash from different business premises around Pretoria. They were travelling in three vehicles, a cash delivery vehicle and two escort vehicles. At or near Marikana village on the Soutpan road they were attacked by approximately twenty assailants, some armed with assault rifles and handguns, wearing balaclavas, or other headgear and gloves. The Fidelity Cash Solutions vehicles were shot at and brought to a halt. In the execution of the armed robbery by the attackers the two deceased were fatally injured and died of gunshot wounds. Cash totalling in the order of R640 790.00 being conveyed in the cash delivery truck was removed by the attackers after explosives were used inside the truck to gain access to the contents of the safe vault.

 

[6]          The deceased’s’ colleagues were held at gunpoint and they were robbed of their service firearms. Two of the three Fidelity Cash Solutions, the cash truck and one of the escort vehicles were damaged. A large number of spent cartridges were later recovered at the scene by the forensic experts for ballistic analysis. None of the deceaseds’ colleagues could identify the assailants.

 

[7]          A second leg of the an investigation conducted by a task force mandated to investigate cash in transit robberies called GANELIMP by South African Police Service investigation teams attached to various units from Gauteng, Nelspruit (Mbombela) and Limpopo were operational during July 2018 in Pretoria is relevant to the offences alleged to have been committed by Accused No 2 and 3,counts 1 to 4 in the indictment. It is in connection herewith that the State and Defence cases differ considerably. The State witnesses testified about one of the teams aforementioned on information received regarding possible suspects having gone on the afternoon of 6 July 2018 to the home of Accused No 3 at Soshanguve, which culminated in the recovery of a bag from the home of Accused No 2 which contained two assault rifles, magazines, a large number of live cartridges , balaclavas and gloves.

 

The defence on the other hand disputed that this had happened as testified to by the police witnesses and that they had lied. His version was that the police wearing balaclavas arrived at his house shortly before midnight on 5 July 2020, overwhelmed him  and severely assaulted him throughout the night trying to force him to confess to knowledge of the whereabouts of firearms used in a cash in transit robbery. The defence version was a denial that he had taken a bag containing firearms to the former Accused No 1’s home, had led the police to Accused No 2’s home and had entered Accused No 2’s  to point out the firearms. He denied any knowledge of the firearms found in her home, to this day has never physically seen the firearms, only photographs of them and that the police were falsely implicated him. His version was further that he was taken to various other locations in and around Pretoria, Hammanskraal, Motla and Wonderpark Estate where various persons were apprehended, a rifle and explosives were located. He denied that he had ever taken the bag of firearms in question to Accused No 1, that  a certain Jabu and Temba had done so  and further that Jabu had eventually taken the police to where the bag was located at Accused No 2’s home. Accused No 3 on his version sat in a car outside the Accused No 2’s house when the police went in to find the bag and never entered.

 

[8]          The DNA evidence found Accused No 3’s DNA to be present inside one of the balaclavas found in the bag as well as inside one of the gloves, Accused No 3 made on the State witnesses’ version certain admissions regarding the firearms located, to which Accused No 3  raised the defence as set out in my summary and analysis of the evidence infra. One of the assault rifles, a Dashprod SAR M14 found in the bag at Accused No 2’s house, was ballistically linked to spent cartridges recovered from the scene of the cash in transit armed robbery on 10 December 2017.

 

[9]          The issues to be decided by this Court are:

 

§  Whether Accused No 2 knew that there were firearms and ammunition in the bag left at her house by Executive Letshoa ;

 

§  Whether Accused No 3 identified gave the bag containing the firearms to Executive and / or identified the firearms in question to the police and / or whether such evidence was admissible and/or whether it suffices for purposes of Counts 1 – 4 that his DNA was found on a glove and balaclava in the bag containing the firearms ; and

 

§  Whether or not Accused No 3 was one of the participants who allegedly conspired to commit armed robbery, and responsible for the armed robberies, murder, malicious injury to property and use of explosives on the Soutpan road on 10 December 2017.

 

 

[10]       The Court is alive to the fact that it has to “apply its mind not only to the merits and the demerits of the State and the defence witnesses, but also to the probabilities of the case”. In the matter of S v Singh 1975 (1) SA 227 (N) at p 228 E-G the Honourable Judge Leon held that:

 

“Because this is not the first time that one has been faced on appeal with this kind of situation, it would perhaps be wise to repeat once again how a court ought to approach a criminal case on fact where there is a conflict of fact between the evidence of the State witnesses and that of an accused. It is quite impermissible to approach such a case thus: because the court is satisfied as to the reliability and the credibility of the State witnesses that, therefore, the defence witnesses, including the accused, must be rejected. The proper approach in a case such as this is for the court to apply its mind not only to the merits and the demerits of the State and the defence witnesses but also to the probabilities of the case. It is only after so applying its mind that a court would be justified in reaching a conclusion as to whether the guilt of an accused has been established beyond all reasonable doubt. The best indication that a court has applied its mind in the proper manner in the abovementioned example is to be found in its reasons for judgment including its reasons for the acceptance and the rejection of the respective witnesses.

 

[11]       In the matter of S v Mgedezi and Others 1989 (1) SA 687 (A) cf 704 B an accused was acquitted as the State had failed to establish its case against one of the accused as there was nothing substantially improbable in respect of that accused’s evidence.

 

“In the case of accused No 7, then, we have a straightforward conflict of evidence between Motjoli and the accused. It is possible, on a minute scrutiny of the evidence of accused No 7, to unearth minor points of criticism against it, but that applies no less to the evidence of Motjoli. No motive has been revealed as to why Motjoli would falsely implicate accused No 7 and it may be said that it is unlikely that he would have done so, but it need hardly be added that that affords no sufficient basis for rejecting accused No 7's denial of Motjoli's evidence as being false beyond reasonable doubt. As I have said, there is nothing substantially improbable about accused No 7's evidence. In my judgment the State failed to establish its case against No 7 with the requisite degree of proof.”

 

[12]       I have had due regard to the dictum of the Honourable Olivier JA in respect of contradictions and deviations in evidence tendered in Court  by witnesses,  in S v Mafaladiso en Andere 2003 (1) SACR 583 (SCA) at 593 H et seq,  to which Defence Counsel referred in his Heads of Argument on the Merits, where it was held inter alia:

 

“…dat nie elke fout deur 'n getuie en nie elke weerspreking of afwyking die getuie se geloofwaardigheid aantas nie (sien S v Mkohle 1990 (1) SASV 95 (A) op 98f - g). Nie-wesenlike afwykings is nie noodwendig relevant nie. (Sien S v Bruiners en 'n Ander 1998 (2) SASV 432 (SOK) op 437g ev.)

Derdens moet die weersprekende weergawes steeds oorweeg en ge-evalueer word op 'n holistiese basis. Die omstandighede waaronder die weergawes gemaak is, die bewese redes vir die weersprekings, die werklike effek van die weersprekings ten aansien van die getuie se betroubaarheid of geloofwaardigheid, en die vraag of die getuie voldoende geleentheid gehad het om die weersprekings te  verduidelik - en die kwaliteit van dié verduidelikings - en die samehang van die weersprekings met die res van die getuie se getuienis moet onder andere in ag geneem en opgeweeg word. (Sien S v Mkohle (supra op 98f - g); sien ook R v Gumede (supra op 756 - 8 in medio);  S v Jochems 1991 (1) SASV 208 (A) op 211f - j; S v Bruiners en 'n Ander (supra op 437i - 438a).)

 

Ten slotte word die eindtaak van die Verhoorregter, nl om die gewig van die vorige verklaring teen dié van die viva voce getuienis op te weeg, ook in hierdie soort gevalle tereg soos volg in S v Sauls and Others 1981 (3) SA 172 (A) op 180F saamgevat: 

'The trial Judge will weigh his evidence, will consider its merits and demerits and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told.' ”

 

[13]       It is trite that the State had to prove its case against Accused No 2 and Accused No 3 beyond a reasonable doubt, whereas their defence needs only to be reasonable possibly true.[1] Furthermore, in terms of section 35 of the Constitution, the supreme law of the Republic, every Accused has the right to a fair trial.

 

[14]       Accused Nos 2 and 3 stood trial in respect of the following offences:

 

Count 1: Contravention of section 3 read with sections 1, 103, 117, 120, and 121(a) read with Schedule 4 of the Firearms control Act 60 of 2000 and further read with section 250 of 1977, unlawful possession of a firearm, a 5.56 x 45mm calibre Vektor model LM5 assault rifle on 6 July 2018 at Soshanguve;

 

Count 2: Contravention of section 3 read with sections 1, 103, 117, 120(1)(a), and 121 read with Schedule 4 of the Firearms control Act 60 of 2000 and further read with section 250 of 1977, unlawful possession of a firearm, a 5.56 x 45mm calibre Dashprod model SAR M14 semi-automatic rifle on 6 July 2018 at Soshanguve;

 

Count 3: Contravention of section 90 read with sections 1, 103, 117, 120(1)(a), and 121 read with Schedule 4 of the Firearms control Act 60 of 2000 and further read with section 250 of 1977, unlawful possession of ammunition, 5.56 x 45mm calibre ammunition on 6 July 2018 at Soshanguve

 

Count 4: Contravention of section 90 read with sections 1, 103, 117, 120(1)(a), and 121 read with Schedule 4 of the Firearms control Act 60 of 2000 and further read with section 250 of 1977, unlawful possession of ammunition, 5.56 x 45mm calibre ammunition on 6 July 2018 at Soshanguve

 

Count 5: Contravention of section 18(2)(b) of the Riotous Assemblies Act 17 of 1956, a conspiracy to commit robbery, prior to and during December 2017, but including 10 December 2017 at or near Marikana village, in that the accused  unlawfully and intentionally conspired with one another and other accomplices unknown to the State to aid or procure the commission of / or commit an offence of robbery with aggravating circumstances.

 

Count 6: Murder read with the provisions of section 51(1) of Act 105 of 1997, in that on 10 December 2017 at or near Marikana village the accused unlawfully and intentionally killed Klaas Mshoto Sehemo, an adult male by shooting him with a firearm

 

Count 7: Murder read with the provisions of section 51(1) of Act 105 of 1997, in that on 10 December 2017 and or near Marikana village the accused unlawfully and intentionally killed Isaac Lebtla Mathiba an adult male by shooting him with a firearm

 

Count 8: Robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977 and read with section 51(1) of Act 105 of 1997 in that on 10 December 2017 and or near Marikana village the accused did unlawfully and intentionally assault Legeshe Gaborone Phoshoko, Klaas Sehemo, Isaac Mathiba and Boitumelo Mogale and with threats and violence take from them cash in the amount of R641 790.00, the property of Fidelity Cash Solutions or in their lawful possession.

 

Count 9: Robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977 and read with section 51(1) of Act 105 of 1997 in that on 10 December 2017 and or near Marikana village the accused did unlawfully and intentionally assault Legeshe Gaborone Phoshoko and with threats and violence take from him a firearm, to wit a 9mm pistol with serial number 0511174 containing 15 rounds of live ammunition, the property of Legeshe Gaborone Phoshoko or in his lawful possession.

 

Count 10: Robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977 and read with section 51(1) of Act 105 of 1997 in that on 10 December 2017 and or near Marikana village the accused did unlawfully and intentionally assault Boitumelo Mogale and with threats and violence take from him a firearm, to wit a ARO M16 rifle with serial number 851537 containing 30 live rounds of ammunition, the property of Fidelity Cash Solutions or in the lawful possession of the said Boitumelo Mogale.

 

Count 11: Robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977 and read with section 51(1) of Act 105 of 1997 in that on 10 December 2017 and or near Marikana village the accused did unlawfully and intentionally assault and with threats and violence take from Isaac Mathiba a firearm, to wit a 9mm pistol, the property or in the lawful possession of Isaac Mathiba

 

Count 12: Robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977 and read with section 51(1) of Act 105 of 1997 in that on 10 December 2017 and or near Marikana village the accused did unlawfully and intentionally assault or with threats and violence take from Mpho Government Mlambo a firearm, to wit a 9mm pistol (P99), with serial number 02370 containing 15 live rounds of ammunition.

 

Count 13: Contravention of section 22(2),(3) read with sections 29 and 15(1)(a) of the Explosives Act 15 of 2003, Endangering Life or Property, in that on 10 December 2017 and or near Marikana village the accused did unlawfully and intentionally cause an explosion by igniting explosive inside the vehicle belonging to Fidelity Cash Solutions and thereby endangering life and / or property without being holders of a permit or licence issued in terms of the Explosives Act 15 of 2003 thereby contravening the provisions of the said Act.

 

Count 14: Malicious Injury to Property, in that on 10 December 2017 and or near Marikana village the accused did unlawfully and intentionally damage the property of Fidelity Cash Solutions, to wit an Isuzu bakkie with registration number DM 55 MF GP by shooting at it with firearms causing it to collide with another vehicle to wit a Golf 5 with registration number DJ 94 CN GP.

 

Count 15: Malicious Injury to Property, in that on 10 December 2017 and or near Marikana village the accused did unlawfully and intentionally damage the property of Fidelity Cash Solutions, to wit a truck with registration number YMT 729 GP by shooting at it with firearms and igniting explosives inside it causing an explosion

 

Count 16: Malicious Injury to Property, in that on 10 December 2017 and or near Marikana village the accused did unlawfully and intentionally damage the property of Mpho Mlambo, by shooting at a Fidelity Cash Solutions’ vehicle causing it to collide with his vehicle, to wit a Golf 5 with registration number DJ 94 CN GP.

 

[15]       13 November 2019 immediately prior to his closing the State’s case applied for an amendment of count 13 in the indictment which was not opposed by Defence Counsel and was granted by the Court, with the charge now reading as follows:

 

“That the Accused contravened section 22(2) of the Explosives Act No. 15 of 2003 read with sections 29(1)(a) and 15(1) of the said Act

 

In that upon or about 10 December 2017 and at or near Marikana Village the accused unlawfully and intentionally delivered, placed, discharged, detonated or initiated explosives with intent to cause death or serious bodily injury to any other person or to damage or destroy any place, facility or system.

 

and in the alternative that the Accused contravened section 22(3) read with sections 29(1)(c)(i) of the aforementioned Act.”

 

[16]       The summary of substantial facts in terms of section 144(3)(a) of the Criminal Procedure Act 51 of 1977 alleged the following:

 

“1.        Sometime during December 2017 including 10 December 2017, the accused and his accomplices presently unknown to the State, conspired with one another to attack the Fidelity vehicle carrying cash in and around Soshanguve and Marikana village with firearms with the aim of robbing the security officer after collecting cash from different businesses.

 

2.            On 10 December 2017 the accused and his accomplices attacked the Fidelity vehicles with registration numbers YMT 729 GP and DM 55 MF GP at or near Marikana village on the Soutpan road by firing several shots at them with rifles and hand guns causing them to come to a stop.

 

3.               The deceased Klaas Sehemo who was the driver of the escort vehicle was shot and died at the scene. The cause of death was determined as “gunshot wounds of the chest”.

 

4.               Isaac Mathiba who was a crew in the vehicle carrying the cash was also shot and died on arrival in hospital. The cause of death was determined as “perforating gunshot injury of the chest”.

 

5.               The attackers (including the accused) took the firearms belonging to the security guards and that belonging to Mpho Mlambo, a police officer who was travelling past the scene in his private vehicle.

 

One of the attackers placed explosives near the safe in the vehicle (YMT 729) carrying the cash and caused an explosion. The safe containing cash was destroyed.

 

6.               The accused and his accomplices took cash contained in the safe and fled the scene in different vehicles. The amount stolen was determined as R641 790.00.

 

7.               On 06 July 2018 the police arrested the accused for possession of firearms (2x rifles) contained in a bag recovered in the house of accused no. 2 hidden under a bed in the bedroom. Both firearms had their serial numbers obliterated.

 

8.               There were also hand gloves and balaclavas recovered inside the bag containing the firearms. DNA samples obtained from the gloves were analysed and found to match that of accused no. 3.

 

9.               The forensic ballistic tests were conducted on the recovered firearms and were found to have been used to fire cartridges recovered on the scene on 10 December 2017.

 

10.            The state alleges that the accused and other person unknown to the state acted in furtherance of a common purpose in the possession and use of the said firearms in the commission of various crimes and in hiding them from detection after their use.”

 

[17]       On 15 October 2019 when the trial proceeded, State Counsel put the charges in the indictment to the accused.

 

 

[18]       Accused No.2 and 3 pleaded not guilty to all sixteen counts. 

 

[19]       Defence Counsel was asked whether accused No. 1 and 2 wished to make statements indicating the bases of their defence in terms of section 115(1) of the Criminal Procedure Act 51 of 1977.

 

[20]       A statement in terms of section 115(1) of Act 51 of 1977 setting out the basis of accused No. 2’s defence in respect of counts 1–4 only was read into the record on her behalf, the contents thereof confirmed by her, which was to the following effect:

 

“At 08h00 on 6 July 2018 she was at home at 1582 plot 66 Soshanguve when she received a phone call from the former accused No 1^[2], now deceased, informing her that he needed a favour to put a bag in her house for safe-keeping.

 

She agreed and when he came she pointed out to him where to put the bag and she went back to sleep.

 

At 14h00 on 6 July 2018 she realised that police were all over her yard. They greeted her but did not introduce themselves and did not say for what purpose they were at her house.

 

They asked her where the bag was, the one brought to her by someone and she directed them to the room where she had told accused No. 1 to put the bag.

 

They went in and she was not in their company.

 

Later on she was called to that room and they told her there were firearms in the bag. She did not see the contents of the bag and she told them the bag was brought by Accused No. 1.

 

They asked her about their relationship and she told them he was a family friend and her children called him uncle and they had grown up in front of him.

 

They asked her how the bag had come into her possession and she told them. She thought he was not going to stay away long. She did not suspect anything about the bag.

 

In the presence of the police officers she called accused No.1 and put the phone on speaker. He said he would be at her home in 20 minutes and did in fact come to her house.

 

Accused No.1 told the police that the bag was indeed brought by him and she did not know anything about it nor what it contained. Accused No 1 told the police that he did not tell accused No. 2 what was in the bag.

 

That was when she was placed under arrest for those firearms and ammunition. It was then the first time when the bag was opened and she saw the firearms.”

 

[21]       Accused No. 2 declined to make a statement setting out the basis of her defence in respect of counts 5 – 16 and put the State to the proof of the allegations in all of the counts 1 to 16.

 

[22]       Accused No.3 elected to remain silent and put the State to the proof of the allegations in counts 1 to 16.

 

[23]       The Court dealt with the relevant provisions of section 51 of the Criminal Law Amendment Act 105 of 1997 and ensured that the two Accused understood the implications of these provisions. State Counsel declined the invitation to address the court in terms of section 150(1) of the Criminal Procedure Act 51 of 1977.

 

[24]       Formal written admissions dated 16 October 2019  by the two accused, in terms of section 220 of the Criminal Procedure Act 51 of 1977, were made, confirmed and admitted into evidence as Exhibit “A”. Amended admissions, dated 12 November 2019 made by the two accused, confirmed by both accused were introduced into the evidential material as exhibit “A1”. Exhibit “A1” was a repetition of Exhibit “A”, correcting and amplifying certain details. The accused formally admitted the following, the corrections and amplification duly inserted:

 

“1.   That they have no permits or licenses to possess firearms and ammunition.

 

2.    That Klaas Moshoto Sehemo, the deceased in Count 6 of the indictment, an adult male died on 10 December 2017 as a result of a gunshot wounds of the chest which he sustained on that day at Soutpan Road in the Regional Division of Gauteng.

 

3.    That Klaas Mshoto Sehemo sustained no further injuries during transportation from the scene until a medico legal post mortem was carried out on his body at the Garankuwa Forensic Pathology Service Mortuary by Dr Eric Djungonyo Onoyo on 12 December 2017.

 

4.    That his body was correctly identified by Malebogo Victoria Sehemo.

 

5.      That the Medico Legal Post Mortem Report and the affidavit, in terms of section 212(4) of the Criminal Procedure Act 51 of 1977 as amended, compiled by Eric Djungonyo Onoyo and their contents are admitted as true and correct as Exhibit “B” hereto.

 

6.      That the photographs of the scene where the deceased mentioned in Count 6 of the indictment died, plans and key thereto as compiled by Thierry Werner Beheyetd as well as his accompanying affidavit are admitted as being a true reflection of the said scene as Exhibit “C” hereto.

 

7.      That Isaac Lebetla Mathiba, the deceased in Count 7 of the indictment,  died on 10 December 2017 as a result of Perforating Gunshot Injury of the Chest which he sustained on that day at Soutpan Road in the Regional Division of Gauteng.

 

8.      That the body of Isaac Lebetla Mathiba sustained no further injuries during transportation from the scene until a medico legal post mortem was carried out on his body at the Garankuwa Forensic Pathology Service Mortuary by Dr Mogotsi Lazarus Modise on 12 December 2017.

 

9.      That the Medico Legal Post Mortem Report and affidavit in terms of section 212(4) of the Criminal Procedure Act 51 of 1977 as amended compiled by Elton Mogotsi Lazarus Modise and their contents are admitted as true and correct as  Exhibit “D” hereto.

 

10.    That his body was correctly identified by Puledi Brenda Mathiba.”

 

[25]       The Medico Legal Post-Mortem Report in respect of Klaas Moshoto Sehemo was admitted into evidence as Exhibit “B”. The photographs of the scene where the deceased, Klaas Mshoto Sehemo died, plans and key thereto as compiled by Thierry Werner Beheydt were admitted into evidence as Exhibit “C” and the Medico Legal Post Mortem Report in respect of Isaac Lebetla Mathiba was admitted into evidence as Exhibit “D”.

 

Evidence adduced by the State

 

[26]       Legeshe Gabarone Phoshoko, testified that on the day of the cash in transit heist he had driven a Fidelity Cash Solutions armoured truck. He had been an employee of Fidelity Cash Solutions for thirty-three years. He testified in essence about the attack in question as follows:

 

[26.1]      At 05h30 on 10 December 2017 he reported on duty at Hermanstad in Pretoria and was the driver of the Fidelity Cash Solutions truck YMT 729 GP which was attacked on the day in question and had been delivering and collecting cash from business clients.

 

[26.2]      He explained the route driven from the depot at Garankuwa, with Isaac Mathiba as crew and Boitumelo Mogale as the so-called third man who was in the back of the truck. Mathiba collected and delivered the money from and to the clients and Mogale had to protect Mathiba when he left the truck.

 

[26.3]      There was initially one escort vehicle, an Isuzu bakkie following behind their truck and at a certain stage a second escort vehicle joined up with them later at Marula Mabopane Shoprite.

 

[26.4]      As he was driving Phoshoko started having concerns when a Ford Ranger vehicle started following them, sped past, then slowed down causing Phoshoko to become apprehensive. He radioed a controller at the depot. The Ford vehicle eventually overtook them and drove away. It evidently did not feature in the cash in transit armed robbery.

 

[26.5]      At a certain point while they were driving on the Soutpan Road near Marikana Village, Phoshoko noticed someone on the road filling potholes and he slowed down. The truck then suddenly stopped and he did not realise at that stage what had caused this to happen.

 

[26.6]      Phoshoko testified that a Skyline motor car had driven past them, made a U-turn and drove back towards them. Someone in the Skyline shot out the back tyre of the truck when the Skyline was about 5 metres away from the truck. In the Skyline there were a driver, front seat passenger and a person on the back seat with a rifle who shot at them. There were several shots fired which he did not count, but he heard multiple sounds.

 

[26.7]      He then said that many people appeared from amongst the trees and long grass next to the road, all males shooting shots into the air and coming in their direction. Most of them were in possession of rifles. When they came to the Fidelity Cash Solutions vehicle, they shot at the window on the passenger side where Mathiba was seated.

 

[26.8]      They came up to the truck and told them to alight, Phoshoko and Mathiba opened the doors and Mathiba was the first to alight. He could not see their faces because they wore balaclavas.

 

[26.9]      Phoshoko lay down next to the front right tyre and Mathibe went to the left. Phoshoko did not see what happened to the third man, Mogale, as he was at in the back of the truck.

 

[26.10]   One of the attackers armed with a BSP, which Phoshoko testified was a rifle with something screwed on, told him to get up, instructed him to open the door at the back for the third man to get out, which he did and he then lay back down on the ground again.

 

[26.11]   The Skyline then drove up and one of the attackers told them to move. Phoshoko jumped towards the middle of the road. At that point in time a Polo vehicle drove up and a man with a 38 revolver was shooting. He had covered his face with a balaclava. This person fired shots and then waited until others, in his words, “bombed” the truck.

 

[26.12]   The people who bombed the truck had arrived in a Toyota long base pickup at a stage after Phoshoko moved off the road. There were six to eight men who alighted from the Toyota, whereupon the truck was then bombed.

 

[26.13]   These people offloaded many hard plastic boxes of different sizes from the truck and loaded these onto and into the attackers’ vehicles. The Skyline according to Phoshoko had already driven off even before the bombing of the truck.

 

[26.14]   At a late stage of the events Phoshoko had landed up in the mud on the side of the road and sustained cuts from broken bottles lying there. He was treated for the cuts in hospital. He was only told later that Mathiba had been been shot, taken to hospital after the attackers had left and help had arrived. He heard that Mathiba had died.

 

[26.15]   Phoshoko’s 9mm pistol serial number 0511174 with 15 rounds in the magazine was taken by the assailants from the holster on his belt while he was on the ground. It was never recovered. He also did not check on any of the damage caused at the scene. He further testified that all their firearms were taken by the attackers.

 

[26.16]   When asked whether any of Fidelity persons had fired at the attackers he stated that they had not, as all of them were scared. It was the first time for him to experience an attack like this. None of them radioed the control room for help during the attack.

 

[26.17]   Phoshoko stated that it was the first time that they had travelled on that route that day.

 

[26.18]   He saw that in one of the escort vehicles a person in it had been shot. This vehicle had collided with a private motor vehicle.

 

[26.19]   Makoro had been in the escort vehicle, but Phoshoko could not remember the name of the driver who had been shot. All in all they had been seven Fidelity Cash Solutions people attacked at the scene. Phoshoko also did not know what had happed to the second escort vehicle.

 

Cross-examination by Defence Counsel.

 

[26.20]   Phoshoko stated that he did not see who took his firearm.

 

[26.21]   He did not see a female on the scene and up until the present day cannot point out any of the attackers as they had covered their faces with something black.

 

[26.22]   Neither could he point out the person who took his firearm nor the person who shot the window where the crew was seated.

 

[26.23]   When it was put to him that he could not tell what firearms were used, Phoshoko answered that they had a mix of firearms, but he did not know which firearm shot his colleague’s window and he did not see what firearm was used to shoot the truck’s tyre.

 

[26.24]   As regards the rifle he mentioned, he was asked what kind was used and he said it was one with a long barrel. He also did not know what was used to bomb the truck, or who had done this.

 

[26.25]   When asked certain questions by the Court in clarification of his evidence, Phoshoko stated that he had initially been a supervisor and had moved over to driving cash in transit vehicles. The vehicle was white and green but could have been blue and white. It was a vehicle which was a single unit with a cab in front. The person who had approached him while he was lying down on the ground instructed him to open the truck at the back.

 

[26.26]   He was asked whether any of the assailants had worn anything apart from balaclavas to disguise themselves and Phoshoko stated handgloves.

 

“COURT:   Did you ever see whether any of these assailants wore anything apart from balaclavas to disguise themselves?

MR PHOSHOKO:   Hand gloves.

COURT:  They were wearing?

MR PHOSHOKO:   Gloves.”

 

[27]       Boitumelo Mogale, the third man in the cash truck driven by Phoshoko, on 10 December 2017 and attacked by armed robbers on the Soutpan road near Marikana village, testified as follows:

 

[27.1]      He was the third man, a security guard and was armed with an ARO M16 rifle with serial number 851537 on the day in question in the back of what he called the Buffalo truck when it was attacked by unknown people.

 

[27.2]      He was in the truck that was moving and heard gunshots fired which caused the truck to stop. He could not see what was happening because he was at the back and the driver could not drive further.

 

[27.3]      He stated that it was at about 05h00 to 05h30 when it happened. Two of the assailants opened the truck door and said voetsek get out. He stated that he could not see their faces or identify them as they were wearing balaclavas and had rifles pointed in his direction.

 

[27.4]      When he got out of the truck they took his rifle with number ARO (M16) 8515-37. and made to lie on the ground with Mathibe and were being ordered around. They took Mathibe’s firearm, a small arm like a 9mm or what he called a fly-wheel (revolver) at the same time that they took his. He only saw the two people because they were lying next to the truck, but the scene was busy and by that he meant there were other voices and the door of the truck was standing open.

 

[27.5]      He was initially made to lie on the ground outside next to the truck and next to Mathibe, but at a stage taken across the road to lie there.

 

[27.6]      They then bombed the truck and after it was bombed he heard a shot.

 

[27.7]      He stated that he been with Mathibe and heard fighting. His evidence was:

“As we were made to lie there, . . I could hear that there was fighting not a distance far away and when the escort people came somebody spoke to blood being spilt there.  They then made us to get up and it is then that it was then discovered that Mathiba had been shot at and he was then loaded in the van.”

 

 

[27.8]      Later when help arrived and he was told to get up they found that Mathibe had been shot. There had been no communication between him and Mathibe while they were on the ground. Mathibe was picked up and loaded into the patrol escort vehicle that had arrived and taken to hospital.

 

[27.9]      He had worked six years by then for Fidelity Cash Solutions and this was the first time to be involved in such an incident.

 

[27.10]   Under cross-examination by defence Counsel Mogale stated that he only saw two people who were males. He did not see their faces, nor did he see who bombed the cash truck. He could not identify the people who had taken their firearms, nor could he identify who had shot Mathibe.

 

[28]       Kgaufa Matthews Magoro was the next State witness to testify and his testimony was as follows:

 

[28.1]      At the time of the incident in question he had been working for Fidelity Cash Solutions for ten years. He was a passenger in an Isuzu pickup driven by Klaas Sehemo (the deceased in count 6) escorting Zulu 1, the Fidelity Cash Solutions truck that Legeshe Gabarone Phoshoko had been driving on the day in question on the Soutpan road near Marikana village.

 

[28.2]      Klaas Sehemo had been driving the marked escort vehicle behind the cash truck at the time of the incident. There was also an unmarked escort vehicle in the convoy.

 

[28.3]      The cash truck suddenly came to a halt in front of them. Makoro saw the brake lights and he asked Sehemo whether the vehicle was supposed to be turning. He then heard shots close to them. His evidence was:

 

“My vehicle was the last vehicle, that is now the vehicle at the rear of the vehicle as they were moving.  In front of us there was a truck that was being escorted.  Behind the said truck there is this unmarked escort vehicle, behind it there would be my vehicle and as we were mobile the truck in front suddenly came to a halt.  I saw braking lights indicating that it was now braking.  As we saw that action where the truck indicated to be braking I asked my partner, Sehemo, could that vehicle be turning somewhere, is it supposed to turn somewhere.  In that midst we then heard firearms being fired towards us.  The driver, Klaas Sehemo, then lost control of the vehicle in which we were travelling in.  As the vehicle lost control it went and hit a Golf 5 which was also mobile on the road.  I then hid myself, bowing and hiding my face around dashboard Isuzu vehicle, I hid myself underneath there.”

 

[28.4]      After the collision and after the attackers had left the driver of the Golf came to their vehicle and asked if anyone was hurt. Makoro got out. Sehemo was lying on the driver’s side and had been shot.

 

[28.5]      Makoro testified that he had had a LM 5 Dashprod rifle but could not find it after the attack and it was not recovered.  There were bullet holes in their vehicle.

 

[28.6]      He identified the vehicle that their vehicle had collided with in Exhibit “C” photographs 26 and 27, a silver Golf. Their vehicle being the marked Isuzu also shown in the photographs.

 

[28.7]      After the attackers had left, a forensic pathologist took Sehemo from the scene. When he went to the other escort vehicle he saw it had also been shot at and he saw that the cash truck had been bombed inside. He saw Mogale next to the truck in a state of shock and Mathibe was lying on the ground and was in pain from having been shot.

 

[28.8]      Under cross-examination by defence Counsel Makoro stated that Klaas Sehemo had been shot, but he did not know who had shot him. He confirmed that his firearm was an LM5 Dashprod rifle. There was no re-examination by State Counsel.

 

[29]       Mpho Government Mlambo, the driver of the Golf 5 vehicle with which the Isuzu escort vehicle collided on the day in question, as deposed to by Makoro, testified as follows:

 

[29.1]      Mpho Mlambo is a member of the South African Police Services stationed at the Belle Ombre, police station in Marabastad and the owner of a silver Volkswagen Golf with registration number DJ 94 CN GP.

 

[29.2]      On 10 December 2017 he was on his way to work from his home in Soshanguve and on his way to fetch a colleague at Marikana.

 

[29.3]      He was driving on the Soutpan road and there were vehicles driving to and fro. He can recall a GS4 or Fidelity truck having overtaken his car. After it overtook his car he heard shots and a vehicle hit his car. He took cover in his car.

 

[29.4]      He heard footsteps as a person approached him and pointed a firearm at him. The person opened the door and instructed him to alight. His own firearm had fallen under the car seat. After this person took his firearm and his bullet proof vest he told Mlambo to get back in the car and not even move. He fired a single shot into the ground.

 

[29.5]      Mlambo’s firearm was a service issued P99 9mm pistol with serial number SAP02370 fully loaded with 16 rounds in the magazine. Mlambo was in full police uniform.

 

[29.6]      While Mlambo was in the car he heard the sound of an explosion as if something had been bombed.

 

[29.7]      When shown photographs 52, 53 and 54 in exhibit “C” he stated that these were of his car and the Isuzu bakkie with the Fidelity brand markings on it.

 

[29.8]      He did not see what happened further because he had positioned himself on the floor of the car between the dashboard and the passenger seat, kind of lying down.

 

[29.9]      He only got out of his car after he no longer heard movement outside. He saw a group of people from the village running towards the cash truck. He also saw one person lying inside the van but did not see if he was alive or not.

 

[29.10]   Repairs to his car cost R8 000.00 which he took from the insurance money paid out. He did not recover his firearm

 

[29.11]   Under cross-examination by defence Counsel Mlambo stated that he did not know who took his firearm and could not identify him. He did not know what had been the cause of the collision as he just heard a bang at the back. He also did not know where the sound of the explosion came from, he only heard it and did not see where it was from. The damage to his vehicle was caused by the security vehicle.

 

[29.12]   There was no re-examination, but the Court asked the witness if he had looked into the security van, which he stated that he had and saw a person lying on the passenger seat and the driver’s side door was open. He did not try to ascertain whether he was alive and confirmed that what he saw was depicted on photograph 60 of exhibit “C”.

 

[30]       Sgt Collen Nellock Silinda was the next witness to testify. Initially he was a single witness to the arrival at Accused No 3’s home, but was joined shortly thereafter by Captain Machete whom he had called to the scene when it became apparent to him after talking to Accused No 3  that he might implicate himself, and therefore needed a ranked officer to be in attendance to assist to obviate receiving what he perceived to be potentially inadmissible admissions. His evidence was corroborated after that by Machete, who gave evidence in this case.  The salient parts of his evidence in chief are as follows:

 

[30.1]      He is a sergeant in the South African Police Services stationed at Mpumalanga Provincial Head Office and was part of a joint operation and task team called GANELIMP (Gauteng Nelspruit [Mbombela] and Limpopo) comprising various units of the South African Police which during the period in question was deployed around Pretoria and Gauteng Province inter alia aimed at combatting cash in transit heists.

 

[30.2]      During the joint operation while in Pretoria he received information from a source regarding a male known as Madaam as his nickname. The address of this person was given to him as stand 1932, Extension 10, Soshanguve.

 

[30.3]      At about 14:00 on 6 July 2018 Silinda went there with colleagues from the task team. They entered the premises and SIlinda knocked at the door. The colleague who was next to him was Sergeant Mabobo.

 

[30.4]      Silinda testified that he introduced himself to accused no 3, as a police official and explained to him that the reason for a visit to his was that he had information that he is one of the cash in transit suspects.

 

[30.5]      Silinda testified that before he went further with the explanation he requested accused no 3 to introduce himself, who stated that he was Stanford Manoko Dihangoane. 

 

[30.6]      Silinda asked him if he knew someone called Madaam and Accused No 3 responded that Madaam was his nickname, it was him and he is known as Madaam.

 

[30.7]      Silinda testified that he told Accused No 3 that his interest lay in information that he had that he was known to be possessing one bag having two rifles. Silinda testified further that Accused No 3 was so cooperative that he never denied and stated that he knew the bag that contained two rifles. 

 

[30.8]      Silinda requested him to produce such a bag, but unfortunately he said that unfortunately the bag was not in his house at the moment.  Silinda, did not have a search warrant and stated that he had not had time to apply for one and the matter was urgent. He requested Accused No 3 if they could search the house to verify if such a bag was there or not. He gave Silinda the go-ahead. The whole house was searched and no bag or rifles were found.

 

[30.9]      According to Silinda’s evidence, Acccused No 3 then told him that he had given the bag of his rifles to one of his trustworthy friends, a certain person called Executive, to keep them safe for him. 

 

[30.10]   Silinda the testified that he had then read Accused No 3 his Constitutional rights seeing that he was cooperating with him and that he also informed him that a bag, his bag containing the rifles was in the possession of his friend. 

 

[30.11]   His testimony was further that owing to his rank he decided that it would be better to call one of his colleague, a commissioner of oaths, a certain Captain Machete, whom he telephoned, as it was apparent that Accused No 3 was agreeing to the fact that he had a bag containing firearms.

 

[30.12]   According to Silinda Captain Machete arrived shortly thereafter. Upon his arrival Silinda explained to him the situation that he was faced with and thereafter he introduced Accused No 3 to Captain Machete. He also explained to Accused No 3 why the captain was there and moving forward he should make all the communications with Captain Machete. Machete confirmed this and told the suspect where he came from and the reason for being there with him. 

 

[30.13]   Silinda noticed that Mashete had taken out his diary whereafter  he explained to the accused what his constitutional rights were, that he is free to can state whatever that he wants to state and further he had told him that he is under no obligation to can tell him whatever that he wants to say and I heard the captain further telling him if Silinda and company had done anything to him he was free to inform the Machete about that.

 

[30.14]   According to Silinda the accused told Machete that they had done nothing to him, he said that he just wanted to tell Machete everything that he knows from the bottom of his heart with regard to the firearms.

 

[30.15]   Silinda then testified that Accused No 3 started telling Machete what he had earlier told him about the firearms that were in possession of Executive and agreed to take them to Executive’s place.

 

[30.16]   Accused No 3 went in Machete’s and they were the ones that were giving directions to a place in Sochanguve, that according to Silinda was unknown to him, and which was Executive’s house.  

 

[30.17]   At the house a lady who introduced herself as Executive’s girlfriend came outside. Machete enquired as to Executive’s whereabouts and the lady explained that he was at work.

 

[30.18]   Silinda further testified that Accused No 3 asked if he could make a telephone call and at the same time he told the lady to telephone Executive.

 

[30.19]   Silinda testified that she promptly telephoned Executive and put the cellular phone on speaker so that everyone could hear her conversation with Executive. He heard a male voice saying that there were police officers present and that was when Accused No 3 interjected and said to the person who was on the phone that “it is me, Madaam” and he further said that “I am with the police and where is my bag containing firearms”.

 

[30.20]   His evidence was further that the man who was on the phone said “I heard that you were arrested by the police and I left your bag at my next-door neighbour, I left it with Scarface’s mother.”

 

[30.21]   His testimony was then that Accused No 3 informed Machete, not to worry, the place was not far, he showed the way and they walked to Scarface’s mother’s house (Accused No 2’s house).

 

[30.22]   Upon their arrival at that house a certain woman came out and it is common cause that this was Accused No, 2. Machete introduced us to her as members of the police.

 

[30.23]   Silinda testified that she was asked about a bag containing firearms.  At that time and without hesitation she admitted to knowing about that bag and then Machete explained to her, her rights.

 

[30.24]   She indicated or that the bag was in a certain locked room, a bedroom, which she unlocked. When she was opening the room Silinda testified that he, Machete, Sgt Mabobo and Accused No 3 were standing next to her.

 

[30.25]   He testified that upon their entering the bedroom she indicated that the bag was underneath the bed and Silinda lifted the bed so that they could see the bag that they were talking about.

 

[30.26]   Machete then inquired from accused 3 whether this was the bag which contained firearms that he had been referring to. His response was if he could see what was in the bag then he would be able to admit or deny knowing the bag.

 

[30.27]   Silinda testified that he had then put gloves on his hands.  He unzipped that bag and Machete asked Accused No 3 to step closer in order to be able to see the contents.  Silinda testified that having been the person to have opened the bag he had seen that there were two big rifles containing magazines as well as what he called a “cooper” hat, i.e a balaclava as well as hand gloves.

 

[30.28]   Silinda’s evidence was that Accused No 3 came closer and he saw what was contained inside and without any argument he admitted that the bag with its contents was his.

 

[30.29]   Machete read him his Constitutional rights again and these were also explained to Accused No 2.

 

[30.30]   From there Machete phoned a person who was working at LCRC and then he gave that person the residential address of the house where we were.

 

[30.31]   Accused No 2 was in the bedroom when Silinda picked up the bed, the bag was seen under the bed and Silinda unzipped the bag. Silinda could not recall whether Accused No 2 had said anything at the time. After she had unlocked the door for them and they went in, she indicated that the bag left by Executive was under the bed.

 

[30.32]   After he had lifted the bed, found the bag, removed it from under the bed and opened the bag, he had placed it on top of a basket in the room so that the Accused No 3 could see it clearly.

 

[30.33]   Silinda indicated that they left the room, he personally locked the door and they went into the sitting room to wait for the LCRC officers to arrive.

 

[30.34]   Silinda continued to testify that before the LCRC officer arrive, Executive arrived first and upon his arrival he mentioned that he was phoned by certain people and they indicated that they are looking for him. Silinda welcomed him and I told him that he was needed and thanked him for coming so quickly.

 

[30.35]   Silinda handed him over to Machete who welcomed him, introduced himself to him and then he read him his rights.

 

[30.36]   A short while later the LCR officer arrived. Upon his arrival it was explained to him about the situation with a bag containing firearms and he was further shown the room where the bag was.

 

[30.37]   What happened was after he was shown that bedroom he started preparing himself, he went to his motor vehicle, he took out his equipment, his cameras and he came with them and he started taking pictures before he could enter in that bedroom or before I could unlock that bedroom for him.

 

[30.38]   Thereafter Silinda unlocked the bedroom and he went inside.  When he entered the bedroom Accused No 2 was present as well as Accused No 3, Executive, Silinda, Machete and Sergeant Mabobo.

 

[30.39]   The LCRC officer went to the bag, he opened the bag and he proceeded to take pictures and thereafter he took out the contents of the bag in the presence of all of them, Accused No 2 and No 3, himself, Machete and Sergeant Mabobo.

 

[30.40]   The LCRC officer went to the bag, he opened the bag and he proceeded to take pictures and thereafter he took out the contents of the bag in the presence of all of them, Accused No 2 and No 3, himself, Machete and Sergeant Mabobo.

 

[30.41]   Silinda testified that he was not in a position to state which pictures were taken. While the LCRC person continued performing his duties Silinda testified that he was able to see the exhibits whilst the LCR officer was busy taking pictures, as he had taken them out of the bag and placed them on the floor. Silinda observed that according to his knowledge the one firearm was an R5 rifle. The other one was known to him to be LM5. Silinda also saw their magazines, balaclavas and hand gloves. He could currently not recall how many magazines there were, but he may have included that information in his statement. Silinda stated further on in his evidence that the magazines had rounds.

 

[30.42]   After the LCRC officer had finished he placed the exhibits inside forensic bags and sealed them.

 

[30.43]   At that stage Machete approached Silinda and informed him that he had completed his task for which he had been called to the scene and was on his way.

 

[30.44]   Silinda testified further that from that point onwards he took over at the scene, explained to Accused No 2’s, No 3’s and Executuve’s Constitutional rights to them. He further informed them that he was placing them under arrest for being in possession of unlicensed firearms. He also explained to all of them that they were all going to the police station, which turned out to be Rietgat Police Station.

 

[30.45]   They left Accused No 2’s premises and all of them travelled in vehicles to Rietgat police station to continue with their paperwork and drafting statements.

 

[30.46]   As they proceeded to Rietgat Police Station the LCR officer is the one who took the exhibits with him and he booked them at SAP 13 at the said police station.

 

[30.47]   Silinda testified that upon their arrival at Rietgat Police Station they proceeded inside and Executive, Accused No 2 and No3 were detained in holding cells whilst Silinda and others were compiling their statements and completing the paperwork.

 

[30.48]   At Rietgat police station Silinda testified he had completed certain documents and informed the officernel at the police station that he had brought three people whom he had arrested on a charge of possession of unlicensed firearms. The charge office officernel assisted him by writing their names in the community services book. He further testified that he signed detainee forms stating inter alia that he was leaving them at the police station without any injuries.

 

[30.49]   He testified that he did not observe any injuries on any of them and then did not cause any injuries on them during the time of their arrest.

 

[30.50]   When asked by Mr Koalepe as to whether at any stage, not himself, maybe some other officers who were with him, his colleagues perhaps, had threatened any of the accused, or perhaps assaulted any of the accused, to which Silinda replied that from the beginning since at the time that they arrived at Accused No 3’s place, he not witness any assault on him by the members of the police who had been in his company on either of them.

 

[30.51]   Accused No 3 accused had been cooperative by leading them from one house to another leading and eventually pointed out the firearms.

 

[30.52]   Accused No 2 had also been also been cooperative because upon Silina’s and his team’s arrival at her house she did not waste any time, she told Machete that the bag in question had been brought by Executive to her and also pointed out the room to Machete in which she had kept the bag.

 

[30.53]   Silinda testified further that from his observations Accused No 2 had been frightened by the fact that the police had arrived and that they were informing her about the things of which she had no knowledge. She did not strike Silinda as having been sick, neither did she mention that she was sick. They just told her why they were there and then they did not bother her in any way.

 

[30.54]   Mr Koalepe asked Silinda as to whether he had questioned Accused No 2 as to how it had come about that she had accepted the bag from Executive and her response was that it was because they were neighbours and they got along and they work together.

 

[30.55]   Silinda was also asked by Mr Koalepe:

 

“as you were talking there could you observe the, how was the attitude between accused 3 and Executive?”

And he replied:

“They looked like people who knew each other and neither of them showed that they had a problem with one another.”

 

 

[30.56]   Adv Koalepe then led Silinda’s evidence requesting his comments in respect of certain photographs in an album provisionally introduced as Exhibit E with the consent of defence Counsel into evidence and whether he recognised anything or knew anything portrayed in these photographs shown to him.

 

[30.57]   Silinda testified that photographs numbered 1 and 2 were of Accused No 2’s house.

 

[30.58]   Photograph number 3 showed a door which he testified Accused No 2 had pointed out as the in which room that she had placed a bag found to contain firearms.

 

[30.59]   He testified that photographs numbers 4 and 5 showed the inside of that bedroom where the said bag was kept, the bed under which the said bag was kept and also the basket where he had placed the bag after he removed it from under the bed.

 

[30.60]   His evidence as regards photograph number 6 was to the effect that he could not comment, as he had not seen what was being photographed and stated that he had already mentioned that he did not follow step by step what the LCRC officer was doing, as he did not want to interfere in his duties.

 

[30.61]   As regards photograph number 7 he testified that he had previously mentioned in his evidence that the bag was black, but now observing the picture properly it looks black.

 

[30.62]   Photograph number 8, according to him, depicted other contents of the bag that the LCRC officer had taken out and placed on the floor as he was proceeding in taking pictures. He testified after looking at what was portrayed, that these were the balaclavas that he had mentioned and the gloves.

 

[30.63]   Photograph number 9 he stated was a close-up of the two balaclavas.

 

[30.64]   Photograph number 10 showed the hand gloves that he stated he had referred to in his evidence.

 

[30.65]   Photograph number 11, he testified, was of the firearms that were found inside the bag, together with the magazines that were loaded with the rounds.

 

[30.66]   Photographs number 12 and 13 according to his testimony showed four magazines, taped two-two together.

 

[30.67]   Photographs numbers 14 and 15 according to his testimony depicted the magazines that were wrapped, or were attached together, and also the rounds that were inside the said magazines.

 

[30.68]   Photographs number 16 and 18 , he testified, depicted what he had  mentioned earlier that upon his observation the firearm was known to him as a firearm that is called LM5 and underneath it was the one that called an R5.

 

[30.69]   Photograph number 17, he testified, showed that the serial number on one of the firearms had been scratched off.

 

[30.70]   The two firearms were also depicted in photograph 18 also with the magazines that were loaded with the rounds inside and Silinda confirmed that they were are they the ones which he had described to the Court.

 

[30.71]   Sgt Silinda was not asked to comment on photograph 19 in Exhibit E.

 

[30.72]   He testified that he had never seen Accused No 2 and No 3 before and after detaining them he had never seen them again until testifying in during the trial in this Court.

 

[30.73]   An indication of the time of detention of  Accused No 2 and No 3 is evident from the SAPS 14A forms, Notices of rights in terms of the Constitution, which he testified he took from the same book with serial numbers R 4532050 and R 4532049, Exhibits “F” (Accused No 2) and  “G” (Accused No 3). Exhibit “F” was completed and signed by Accused No 2 at 20:21 on 6 July 2019 and Exhibit “G” was completed and signed by Accused No 3 at 20:20 on 6 July 2019. Silinda stated that eh explained the contents to both and each signed, certifying that they had been informed of their rights and that they understood the contents thereof.

 

[30.74]   When asked by Counsel for the State whether Accused No 2 and 3 had had any complaints, Silinda stated that they did not have any complaints.

 

Cross-examination

 

[30.75] Defence Counsel cross-examined Silinda for several days. Silinda stuck to his evidence in chief throughout except for stating that Accused No 3 was alone at home when he arrived there, whereas his wife and child were in the house, which he conceded that he was mistaken about.  Defence Counsel put Accused No 3’s version according to his instructions, to Silinda, who vehemently denied all of the following averments comprising Accused No 3’s defence, inter alia that:

 

§  the events had started the night before just before midnight when Accused No 3 was overwhelmed in his house and viciously assaulted in the presence of his wife and child until the early hours of the morning of 6 July 2018;

 

§  they had taken Accused No 3 to Block NN, Block FF, Block AA, Wonderpark Estate or Motla that day to look for Jabu, Calvin, Jafta and a certain Temba. That Jabu and Jafta were arrested and Jabu was questioned about a certain Quantum taxi and the whereabouts thereof;

 

§  that Accused No 3 had only been told about the rifles found and had never seen them;

 

§  Accused No 3 was never in Accused No 2’s house;

 

§  Executive never said to Silinda that Accused No 3 had brought the bag containing the firearms to him;

 

§  Jabu had told Silinda that he, Jabu, and a certain Temba were the persons who had taken the firearms to Executive;

 

§  Accused No 3 denies Machete, Silinda or any other person was ever at his home at around 2pm on 6 July 2018;

 

§  It was put that Accused no 3 had told him and Machete that he had lent his gloves to a certain Temba;

 

§  Accused No 3 denied that he ever told Silinda or Machete that the firearms that were recovered were his;

 

§  Machete and Silinda had stolen R18 000, two watches and four caps from his home;

 

§  Accused No 3 denied that he ever told him and Machete about Executive.

 

[31]    Captain Phillip Machete was the next State witness to testify in respect of Counts 1 to 4. His testimony in the main was as follows:

[31.1]      He is a captain in the South African Police Services, attached to the National Intervention Unit based in Pretoria who was on duty in his office on 6 July 2018 at around 14:00. He was not a member of the GANELIMP task team, of which SIlinda was a member.

 

[31.2]      He received a phone call during the afternoon of 6 July 2018 from Sergeant Silinda. As a result of the information Silinda imparted to him and having been forwarded the address by Silinda as to where he and Constable Mbobo were, he drove to Soshanguve house 1932 in Extension 10.

 

[31.3]      Upon his arrival between 14:30 towards 15:00 at that address, which he had been informed belonged to Accused No 3, he encountered Sergeant Silinda and Constable Mabobo, Accused No 3 and his wife. Introductions followed.

 

[31.4]      When he asked why Accused No 3 was cuffed certain information was given to him that Accused No 3 was a suspect in a cash in transit matter. Machete informed Accused No 3 of his Constitutional rights read from his diary before questioning him while they were sitting on chairs outside in the yard. Accused No 3 said he understood his rights.

 

[31.5]      Machete then asked him that they say that he has two firearms, rifles which Machete testified he had admitted.

 

[31.6]      The Court enquired from State Counsel whether a trial within a trial was imminent whereupon State Counsel averred that this would not be necessary. Discussions followed between the Court with State and defence Counsel. The main objection as to admissibility raised by the defence was that the provisions of section 219A(1) of the Criminal Procedure Act 71 of 1977 required that the statement had to have been in writing and that Machete had not reduced Accused No 3’s admissions to writing. Defence Counsel was alerted to the fact that it appeared that this requirement of admissions being in writing was dealt with in the proviso to the said section where admissions were made to  magistrate these these had to be reduced to writing, subject to certain requirements and be admissible in evidence on mere production thereof at the proceedings  . The provisions of section 218(1) of the Criminal Procedure Act 51 of 1977 were also discussed regarding the admissibility of facts discovered by means of inadmissible confession or statement. At that stage the Court decided not to exercise its discretion to order that a trial-within-a-trial proceed as what was before it at this stage was very loose and fast. I shall deal with these aspects further infra in my judgment in the evaluation of the evidence, facts found and the law.

 

[31.7]      The State proceeded to lead Machete’s evidence and enquired from Machete whether when he found Accused No 3 there whether he had any injuries or had complained of having been assaulted by Silinda or any of his colleagues, to which Machete replied that he did not have any injuries and had not complained that he had been assaulted by Silinda or any of his colleagues.

 

[31.8]      Machete also testified that whilst he was at that particular address at no stage had he seen Sergeant Celinda, Mabobo or any of his colleagues assault the accused, his wife or any children. What he had observed was that he was handcuffed with cable ties on his arms and did not seem like a person who was under pain as he would have told him about this. In addition Accused No 3 was prepared to talk to him.

 

[31.9]      Machete testified that at that place he did not meet anybody called Jabu, Calvin, Jafta or Temba.

 

[31.10]   Machete’s evidence was further that he had put it to Accused no 3 that he had said that he had two rifles and his answer was:

 

“He said yes, I do have them but they are not here.  I took them to a certain man whom they call Executive.”

 

[31.11]   Machete stated that he warned Accused No 3 of his rights for a second time then whereafter Accused No 3 stated when asked if it were possible to point out where he had kept the rifles:

 

“He said yes and I said to him before we proceed going there, do you have a licence of possessing the firearms.  He said he does not have the licence to possess those rifles but they belonged to him.  Then he said then he gave the rifles for keeping to Mr Executive Chomane.”

 

[31.12]   State Counsel pointed out that Executive’s surname was Letshoa.

 

[31.13]   Machete requested that him to come with him in his vehicle and take him to Executive. The two travelled in his car and were followed in vehicles.  He took them to house number 1679 at Block GG, Soshanguve, Executive’s residence where they found Executive’s wife who told them he was not there.

 

[31.14]   Executive’s wife, according to Machete was asked by Accused No 3 to phone Executive and tell him that the police were at the house whereafter she phoned him and told him that the police were looking for him. He said he was at work. She had set the phone on speaker so that everyone could hear.

 

[31.15]   Machete testified that Accused No 3 also spoke to Executive and asked him where he had put the rifles in the bag and Executive replied that he had heard that the police had arrested him and stated that:

 

“I hear that the police had arrested you, then I took the rifles to Scarface’s mother.”

 

[31.16]   Machete’s evidence was further that Accused No 3 said he knew where Scarface’s mother was residing whereupon Machete informed him of his constitutional rights again and asked him if he was prepared to take them there to which he agreed he would do, saying it was only across the street one could walk there. Machete walked there with him, accompanied by Silinda, Mabobo and Magobo. This was Accused No 2’s house. The other police were in the street.

 

[31.17]   Machete testified that at the house, Silinda who had been walking in front, knocked at the door and Accused No 2 opened the door. They introduced themselves, she invited them in and they sat in the sitting room. Accused No 3 was present and Machete told her that they were looking for a bag which was brought by Executive, a bag containing rifles.

 

[31.18]   While he was still asking her that question accused 3, Machete said Accused No 3 then spoke to accused 2 telling her that she should give the police a bag which was brought by Executive, whereupon she did not waste time, stood up and pointed at a room.

 

[31.19]   She led them to a room, had a key and opened the door. Machete, Accused No2 and 3, Silinda and went inside and when Accused No 2 was asked where the firearms were she said they were under the bed. Machete warned her of her constitutional rights.

 

[31.20]   There was a black bag under the bed and Accused No 3 was asked if it was his bag, he stated if it could  be removed and opened so that he can see his rifles inside he could confirm whether it was his. Machete again warned accused 3 of his constitutional rights before the bag was opened.

 

[31.21]   The bag was opened.  Machete then questioned accused 3 that the rifles inside the bag were his. Machete asked him whether the rifles inside the bag were his.  According to Machete Accused No 3 observed them and said they were his.

 

[31.22]   Machete then told Silinda to organise a photographer photographer.  However, while they we were still standing there Executive entered. Machete asked him if he had brought those rifles to accused 2 and he said:

 

“Yes I am the one who brought them over, I gave them to accused 2.”

 

[31.23]   Machete then stated that the door to the bedroom was locked by Silinda with the bag inside and they all then went to the sitting room, including Executive. 

 

[31.24]   Machete informed Silinda that his work was done and Silinda formally placed Accused No 2 and 3 and Executive under arrest.

 

[31.25]   Machete was however still there when the officers from LCRC arrived thereafter between 16:30 and 17:00. Silinda introduced the personnel to accused 2, accused 3 and Executive, and then showed the photographer/LCRC officer where the bag with rifles was after he had unlocked the door to the bedroom where the bag was.

 

[31.26]   Machete testified that he had then left and went to Rietgat police station. He did not see the accused after having left them at Accused No 2’s house nor did he assist in any manner at any stage to investigate the matter further.

 

[31.27]   Machete, when led by State Counsel, stated that he did not know anyone called Jabu, Calvin, Jafta or Temba and was at no stage at Block NN, Block FF, Block AA, Wonderpark Estate or Motla that day. Apart from Accused No 2, No 3 and Executive he did not witness anybody else being arrested that day.

 

[31.28]   He also did not witness anyone assaulting the Accused No 3 in front of his wife and children that day, or of an assault complaint by Accused No 3 to a magistrate or anywhere else.

 

[31.29]   In addition he testified that he knew nothing about Silinda or others allegedly questioning a certain Jabu about the whereabouts of a Quantum vehicle.

 

[31.30]   State Counsel asked him to comment on the defence version that Accused No 3 was only told later on about the rifles having been found and had not seen them, and he stated that, as testified to earlier on in his evidence, that this was not true,  adding that  Accused No 3 had managed to point his rifles which were inside the bag, when they were at accused 2’s place.

 

[31.31]   State Counsel furthermore asked him to comment on the defence version that Accused No 2 and No 3 would testify that Accused No 3 was never in Accused No 2’s house to which Machete replied that:

 

“He will be lying because he was walking with me.  All of us, we got inside the house of accused 2.”

 

[31.32]   In addition Machete testified when he was asked by State Counsel to comment on the defence version  put to Silinda under cross-examination that Executive never said to him or Silinda that Accused No 3 had brought the bag containing the firearms to him, that this was a lie.

 

[31.33]   Machete moreover did not know anything about talk that a person called Jabu had told Silinda that he, Jabu, and a certain Temba were the persons who had taken the firearms to Executive.

 

[31.34]   State Counsel asked Machete to comment on the Accused No 2’s instructions to defence Counsel that Jabu was present when she came out of her house that day, to which Machete replied that this would be a lie.

 

[31.35]   Machete also testified that no person called Jafta had led them to Executive’s house that day and that Accused No 3’s instruction to his Counsel as put to Silinda in cross-examination that neither Machete, Silinda or any other person was ever at his home at around 2pm on 6 July 2018 was a lie.

 

[31.36]   Mr Koalepe asked Machete if Accused No 3 had ever told him that sometime in June 2018 he had lent his gloves to a certain Temba to which Machete replied that Accused No 3 was lying.

 

[31.37]   When questioned by Mr Koalepe, Machete testified that when the LCRC officer was there doing his job he had seen two rifles, balaclavas and hand gloves.

 

[31.38]   As regards the defence version that Accused No 3 denied that he ever told Silinda or Machete that he owned the firearms that were recovered Machete stated that he would be lying.

 

[31.39]    When asked by Mr Koalepe to comment on the allegation that he and Silinda had stolen R18 000, two watches and four caps from his home Machete stated that Accused No 3 was lying.

 

[31.40]    If Accused No 3 contends that he never told anyone about Executive, Machete said he was lying.

 

[31.41]   Machete testified that Accused No 3 co-operated with them at his house was fully informed of his constitutional rights, he answered questions speaking freely and he recorded what he Accused No 3 had  said in his own affidavit Exhibit “J2”. Most importantly he testified that if Accused No 3 had not told them where Executive lived, they would never have found Executive’s house.

 

[31.42]   If Accused No 2 says that she never opened the door to her home and that she just saw them inside Machete stated that that was a lie, because she had opened the door.

 

[31.43]   State Counsel showed the photographs in Exhibit “E” to Machete and he recognised the firearms, magazines, balaclavas and gloves depicted.

 

Cross-examination by defence Counsel

 

[31.44]   As regards two affidavits produced by the defence Exhibit “J2” was Machete’s final affidavit. Exhibit “J1” EXHIBIT “J1” he testified was a draft affidavit which he had lost. He displayed surprise that this affidavit had been commissioned by Sgt Silinda. He stated that after “J1” was commissioned by Warrant Officer Mankayi he left the police station and did not return.  There are minor differences in “J1” and “J2” which are immaterial.

 

[31.45]   Defence Counsel cross-examined Machete at length along the same lines as his cross-examination of Silinda in paragraph [29.75] supra of this judgment.  Machete stuck to his evidence in chief throughout.  It is however significant that a number of subsequent allegations made by Accused No 3  during his evidence in chief and while he was under cross-examination by State Counsel  were not put to Machete and did not have the opportunity to reply to these allegations.

 

[32]       The next witness to testify was Sergeant Sibusiso Khumalo who on 8 July 2018 was a Constable stationed at the Organized Crime Provincial Office of the South African Police Services carrying out investigations

 

[32.1]      On the 8 July 2018 at the request of the Investigating Officer Warrant Officer Mankayi he went to Soshanguve police station obtained a buccal swab of Accused No 3 whom Mankayi had pointed out to him. 

 

[32.2]      He completed a DNA Reference Sample Collection Kit form with serial number 15DBAC6064TF with reference Rietgat 146/07/2018 the contents whereof was explained to the accused as to why the sample was being collected to the said accused

 

[32.3]      He testified that he had been trained at Protea Police Station to take buccal samples and was qualified to take such samples from accused persons. He had five years’ experience in doing so.

 

[32.4]      A person is required to witness the process and in this instance this was Warrant Officer Nthuli who had to sign the bottom of the form when it was completed. Mankayi was not present and had left after pointing out the accused to him, as he was busy with other duties.

 

[32.5]      Khumalo testified as to how he had taken the sample, he himself wearing a mask and gloves and using sponge from a sealed container in the collection kit to collect sputum from inside the accused’s mouth and then resealing the swab. The sample was forensically sealed in a bag to which a sticker with a unique number PA4002637486 was applied to the bag. It is significant that on the DNA analysis carried out by Jeannie Eikeen Yana Cox confirms that she received the reference sample with that number of S Dihangoane pertaining to Rietgat CAS 146/07/2018 as apparent from her testimony infra.

 

[32.6]      He, the witness Nthuli and Accused No 3 signed the form referred to supra. The CAS number and Police Station details were written on the form as well as the Accused’s particulars and his fingerprint affixed. The duplicate document with barcode number 15DBAC6064TF was admitted in evidence as Exhibit “K”. Defence Counsel examined the original.

 

[32.7]      He handed over the forensic evidence bag and a copy of the completed form to Makayi so that he could take this to the laboratory.

 

[32.8]      Defence Counsel cross-examined on aspects of the process including as to why Accused No 3’s fingerprint had to be affixed to the form in question, which Khumalo stated was a requirement as per the form,  as well as certain other questions of which Khumalo would not have had knowledge. There was no re-examination by Counsel for the State.

 

[33]       Warrant Officer Jeannie Eileen Yana van Dyk, maiden name Cocks, was called by the State to testify. She submitted an affidavit deposed to by her Exhibit “L” setting out her qualifications and regarding the DNA analysis  in respect of  the reference sample  PA4002637486 (15DBAC6064) as compared with DNA found to be present on a glove and a balaclava that she had received together with a number of other exhibits in a bag. In her oral evidence she referred to relevant analyses and documentation contained in her court file.

 

[33.1]      Her affidavit was that an inside swab from a glove, which on the evidence of Accused No 3 admitted was his, confirmed the presence of Accused No 3’s DNA inside the glove, the result being 1 in 140 million people.

 

[33.2]      She testified that the glove in question was one of the black gloves that came by itself in the bag as distinguished from the other pair of gloves in the bag.

 

[33.3]      When she was asked to refer to  the file that she brought to Court containing supporting documentation and the results of analyses of the various items subjected to DNA testing, she testified that Accused No 3’s  DNA was also inside one of the balaclavas that she had received. The other exhibits such as the firearms and magazines that featured in this case, which other exhibits did not display the presence of his DNA on them, which she stated was a normal occurrence that they did not find DNA on firearms or magazines.

 

[33.4]  Her evidence regarding one of the two balaclavas which she subjected to the DNA analysis system showed that multiple individuals had touched it at some stage. S Yes, someone else's DNA, not necessarily at the same time, but multiple individuals have touched at it at some point yes.  The same individual could be read into the mixture on that balaclava, the one that is referred to in table 1to her affidavit, S Dihangoane (Accused No 3).   

 

[33.5]  She testified that when “we look at this balaclava here it is a huge mixture”. As regards the glove at least two people contributed to the mixture, but It was less than with the balaclava, so it gave a clearer picture.

 

[33.6]      Cross-examination by Mr Madira was searching as regards handling and storing of the exhibits under analysis even though he did not object to Van Dyk’s affidavit being admitted in evidence. A suggestion was made by him that there may have been cross-contamination between the exhibits and the buccal sample taken from Accused No 3. The Court explained to Van Dyk, arising from a line of cross-examination by  defence Counsel, that he wished to establish how careful one had to be with regard to each and every exhibit, the gloves, balaclavas and each one of the additional exhibits, as well as the buccal sample taken from Accused No 3, to prevent cross-contamination between the various items handled at the laboratory which underwent DNA testing and analysis. Van Dyk’s evidence in this regard was as follows:

 

“Obviously I cannot speak for what happens before the exhibit arrives at the laboratory.  But with our training and our standard operating procedures we change gloves between each exhibit, the latex gloves that our analysts wear, so that we cannot contaminate between each exhibit that we are handling.  We wipe the counters with a bleach solution which kills DNA.”

“. . . we use a bleach solution between each exhibit.  The reference sample will never be analysed by the same analyst on the same day as the crime exhibits.  So you can never use the argument that the reference sample from the accused contaminated any of the exhibits.  That can never be an argument before anyone comes with that one.”

The buccal swab will never come in contact with the exhibits.  So you cannot say that there was cross contamination there.  We analyse it on separate days, different analyst, different desks, different machines.  They do not come in contact at all.  So you can never say that those contaminated each other.  That is not a possibility.”

 

“. . .especially here as I mentioned that the gloves were in separate bags.  So one bag would be handled, but would be finished.  Then a whole wipe down, change of gloves, everything then the next exhibit is handled.  So there is no cross transfer that way.”[3]

 

[33.7]      State Counsel did not re-examine.

 

[34]    Warrant Officer Andile Mankayi a member of the South African Police Services testified that he was the investigating officer in this case stationed at Provincial Organised Crime in Johannesburg. His evidence was essentially as follows infra.

 

[34.1]   Mankayi testified that the former Accused No 1 had been poisoned whilst on bail and had died prior to the commencement of the trial.

 

[34.2]   He only had dealings on 6 July 2018 with Accused No 2 and 3 after having been assigned the case which he had been informed involved cash in transit robberies that his division was currently investigating. He was requested to investigate and determine if the information could be verified.

 

[34.3]   He went to Rietgat police station where the accused were being detained.  When he arrived, he found a group of officers that were outside the police station.  The officers informed him that indeed there were people that were detained at Rietgat police station.

 

[34.4]   Captain Machete was amongst the officers and handed an affidavit written in his handwriting to him which he commissioned. This was Exhibit “J2”. Exhibit “J1” EXHIBIT “J1” was an affidavit that he had found later in the docket and made contact M'Lord to clarify this with Captain Machete who informed him that that was a draft which should be disregarded. He filed “J1” in the B clip in the docket where correspondence was filed. A copy of “J1” had inadvertently been made by the clerk who had made copies of the docket for the defence.

 

[34.5]   He only met Silinda sometime on August 2019 after he served the summons to appear in court.

 

[34.6]   He stated that it appeared that both affidavits had been commissioned at the same time, but he did not see this happen.

 

[34.7]   He did not see Silinda at the Rietgat police station and he himself did not enter the police station.

 

[34.8]   At the police station at that stage they were busy filing the statements in the docket and also registering the docket on the CAS system.  He only got hold of the docket very late that day, because they were still busy capturing it on the system.

 

[34.9]   Silinda according to his knowledge was part of the Nelspruit tracking team, which is actually Mbombela.

 

[34.10]   Mankayi was not present when the Accused were arrested.

 

[34.11]   Mankayi testified that he had only seen the accused on the following day at Soshanguve police station when he introduced himself to them and informed them of their Constitutional rights from a printed copy in his diary and interviewed them.

 

[34.12]   A warning statement was taken from Accused No 2 by a colleague of his and he had only spoken briefly with her after explaining the notice of Constitutional rights which appeared on a form SAP14A. She was formally charged later that day when they processed her via the warning statements, fingerprints and also in the police registers at the police station. She had no complaints, according to Mankayi.

 

[34.13]   After that he met the accused during the first appearance at court and the follow up court dates at Pretoria North court.

 

[34.14]   He met Accused No 3 at Soshanguve police cells on 7^th July 2018, introduced himself to the said accused, explained his Constitutional rights to him as set out the form SAP14A notice and had a long interview with him.

 

[34.15]   He also requested one of his colleagues to get the warning statement from the accused, but at the stage all of them were busy so he took down the warning statement himself. Which was the interview recorded in Exhibit “N” which was initialled and signed by him and the Accused on each page. He has also read out all the information, introductory and other contents to him.

 

[34.16]   During the interview, as testified by him, he realised that Accused No 3 was implicating himself and stopped him from saying anything further. This was recorded in Annexure A of Exhibit “N” in paragraph 2 at page 6 of the document by Mankayi.

 

[34.17]   He explained the notice of rights again, that he was not a commissioned officer and therefore could not take down a statement from him as he was implicating himself.  He told him that he would rather arrange for an officer who would later come and get a statement from him. According to Mankayi Accused No 3 understood what was being explained to him and agreed that he arrange for another officer not in my office, who would have no knowledge of the case, to take down a statement from him, as he was sitting with Colonel Gola from his office.

 

[34.18]   It was arranged and Mankayi testified that he decided to move Accused No 3 from the Soshanguve police cells to Diepsloot police cells, between Pretoria and Johannesburg on the day to facilitate an officer who could come and take a statement.

 

[34.19]   Mankayi arranged for an officer to go and take a statement from Accused No 3 on Sunday 8^th July 2018.  However, when the officer arrived at Diepsloot police cells to take a statement, Accused No 3 indicated to the officer that he already contacted and consulted with his attorney, as Mankayi explained to him he could do. The attorney had advised him not make any further statement. 

 

[34.20]   Mankayi transferred Accused No 3 him from Diepsloot police station to Soshanguve police cells where he had initially been detained.  On 9 July 2018 MAnkayi transported him to Pretoria North court and they subsequently met again for the other court appearances.

 

[34.21]   When asked by State Counsel whether Mankayi had observed Accused no 3’s physical condition Mankayi stated that his wrists were swollen which Accused No 3 said had been caused by the handcuffs when he was arrested. He told Mankayi that initially the police had used cable ties and later used handcuffs on his hands. Mkayis evidence was further that Accused No 3 had never told him of any other injuries except the wrists. He saw no other physical injuries on the Accused No 3.

 

[34.22]   Mankayi stated further that Accused No 3 did not tell him that Sgt Silinda, Mabogo or others who had been in Silinda’s company had assaulted him at any stage.

 

[34.23]   Counsel for the State asked Mankayi whether Accused No 3 had mentioned anything regarding his having been taken to Wonderpark Estates at any stage during the arrest and Mankayi said no.

 

[34.24]   When Counsel for the State asked him if Accused No 3 had mentioned the names of Jabu, Jafta or Themba as having pointed out certain firearms to the arresting officer Mankayi answered that he had not. He added that  on 7 July 2018 that when he was with  Accused No 3 at Soshanguve police cells there was a person who was also arrested on a separate matter called Jabu Mamadi who was also detained there.

 

[34.25]   According to Mankayi’s understanding Mamadi was arrested on the same date as an accused by a different operational group of officers. As he understood matters, on the 6^th July 2018 a group of officers in different groupings were on operation.  Some went to Wonderpark, some went to the Themba area at Hammanskraal and some went to Mabopane.

 

[34.26]   Mankayi stated further that during the day of 6^th July another group with Silinda, Mabobo and Malothi were at Soshanguve at the address of accused 3.

 

[34.27]   When asked if he knew Sgt Khumalo, Mankayi stated that on 8 July 2018 he had requested Sergeant Khumalo to assist him to collect buccal samples from Accused No 3 at the Soshanguve police cells. He did not have buccal samples taken from Accused No 2.

 

[34.28]   Sgt Khumalo met Mankayi at the police station who led him to the cells where he pointed out accused 3 to him as the person from whom he had to take buccal samples.  Immediately after that Mankayi went out to the police station itself to carry on with the preparation of the police docket. Sergeant Khumalo later came to him and handed a forensic bag sealed with the required forms and the samples inside.

 

[34.29]   State Counsel enquired as to the role played by a certain Warrant Officer Nthuli in the taking of the buccal sample taken from Accused No 3 and stated that according to their training, when buccal samples are taken from a person this has to be witnessed. In casu Warrant Officer Nthuli was the witness and had co-signed the form DB “Exhibit K” that Khumalo and he had to complete.

 

[34.30]    Manakayi testified that he had taken the sealed forensic bag received from Sgt on 8 July 2018 and had placed it in his office in his steel cabinet which was locked.  On 1 August 2018 M'Lord he took the forensic bag to the biology section of the forensic laboratory in Arcadia street, Pretoria for analysis. An application letter “Exhibit M1” requesting a DNA comparison with all the relevant information and full particulars of the matter and as to what was required duly accompanied the forensic bag in question and a receipt “Exhibit M2” was obtained at the laboratory reception desk.

 

[34.31]   State Counsel asked Mankayi if he had carried out various procedures on the former Accused No 1 in this case. Mankayi stated that he had. Since Accused No 1 was deceased, having been poisoned, he did not mention him in his evidence.

 

Cross-examination by Counsel for the defence

 

[34.32]   A certain amount of detail is required here with regard to this cross-examination given the fact that a juxtaposition will follow infra with what was put to Mankayi in accordance with defence Counsel’s instructions from Accused No 3, the Accused’s own testimony and the evidence led by defence Counsel of Ms Rapulana and Sgt Hlongwane who was on duty at the police cells at Soshanguve when the accused were detained there on 6 July 2018, which will be dealt with in the Court’s findings in this judgment infra.

 

[34.33]   Defence Counsel commenced his cross-examination of  Mankayi  regarding the first court appearance in court B before Magistrate Ms Rapulana at Pretoria North on the 9 July 2018 by the erstwhile Accused No 1 (now deceased), Accused No 2, Accused No 3  and a certain Calvin Molete and asked him if he recalled the injuries on Accused No 3 recorded by the magistrate.

 

[34.34]   Mankayi stated that he was present and it was put to him that Magistrate Rapulana noted that on accused 3, who was accused 1 at that time, both wrists had injuries or fresh wounds, some bleeding and opening on both wrists as well as bruises and abrasions on both wrists. When the question of the injuries to Accused No 3’s wrists were again traversed in cross-examination, Mankayi testified that at the time he saw Accused No 3 his wrists were just swollen, there was no bleeding or bruises at that stage.

 

[34.35]   The defence called Magistrate Rapulana as a defence witness on 24 June 2020 and her evidence is dealt with below as regards the injuries to Accused No 3’s wrists.

 

[34.36]   Defence Counsel’s instruction from Accused No 3 put to Mankayi, which Mankayi stated was not true, was that:

 

“Accused 3 will come and deny having told you that he sustained those injuries as a result of being handcuffed, he will come and say he was handcuffed in an inhuman manner and assaulted whilst handcuffed hence he got bruises on his wrists.”

 

[34.37]   Mankayi replies to this line of cross-examination were that he had stated in his evidence the previous day that the wrists were swollen. He also stated that the explanation that he gave was that the handcuffs that were used by the police caused the injury. Accused No 3 had told him that cable ties were used to handcuff him and that steel handcuffs were later used.. His evidence was:

 

“I testified yesterday that the officers used cable ties, this is the explanation that he gave to me.”

and

“Initially when I saw him that the reason for the wrists injuries was because the officers used cable ties and later handcuffs but as for the assault that was never mentioned to me.”  

 

[34.38]   Defence Counsel put it further that Accused No 3 will deny that he was handcuffed with metal handcuffs that the police normally use, to which Mankayi replied that he was the one who informed him that cable ties were used and later handcuffs were used.  

 

[34.39]   Defence Counsel then proceed to cross-examine Mankai regarding a bail application launched by Accused No 3 and Calvin Molete on 16 July 2018 in the court at Pretoria North, which Mankayi attended. It was put to him that his affidavit to which he had deposed and was handed in by the State in opposition of the application, did not contain any indication that the accused at that stage who were applying for bail,  Calvin Molete and Accused No 3,  were not assaulted, to which Mankayi answered that this was not true.

 

[34.40]   The record of the bail application was never produced in this Court and other questions relating to an averment in Accused No 3’s affidavit handed submitted at the bail application as to the fact that he averred that the police who had come to his house did not introduce themselves or produce a search warrant clearly fell outside Mankayi’s knowledge.

 

[34.41]   Defence Counsel however continued to put further questions to Manakayi regarding Accused No 3’s affidavit proffered at the bail application and asked Manakyi the following which he testified he could not remember: 

 

“… accused 3 in his affidavit during bail application said that the police assaulted him and took him to Jabu’s place informing him that they are looking for firearms and the police were assaulted him forcing him to make a confession and accused vehemently told them that he does not know anything about the firearms.  Do you remember that part?”

 

[34.42]   Defence Counsel did not pursue any further aspects relating to the bail application in question. It is noteworthy, however, that following on the question posed in the previous paragraph, defence Counsel did not challenge Mankayi’s testimony in chief that there had been separate operational groups investigating and arresting certain suspects on 6 July 2018, that some had gone to Wonderpark, others to the Themba area at Hammanskraal, others to Mabobpane and Silinda, Mabobo and Molothi had gone to the address of Accused No 3 at Soshanguve.

 

[34.43]   Counsel for the defence then proceeded to cross-examine Mankayi on the interview held by Mankayi with Accused No 3 at the Soshanguve police station. It is remarkable that defence Counsel did not challenge the fact that this interview had indeed been conducted with Accused No 3, or that the prescribed interview form SAPS 3M was completed in Accused No 3’s presence. The form was received in evidence as Exhibit “N” and defence Counsel cross-examined Mankayi on the contents and alleged deficiencies therein. This given the fact Accused No 3’s answers under the cross-examination conducted by State Counsel when the contents of the said form were traversed, as appears infra, were that Mankayi had completed the form on his own in an attempt to falsely implicate him , had forged Accused No 3’s signature and that he had seen the form for the first time during consultations with his defence Counsel at the correctional services facility.

 

[34.44]   Under cross-examination Mankayi conceded that when he interviewed Accused no 3 at Soshanguve his legal representative was not there. He stated that he had given Accused no 3 his cellular phone at Soshanguve as well as at Diepsloot to contact his attorney or family or friend to tell them that he was being detained. He was not aware that any other police officer at Diepsloot had given Accused No 3 a phone to use.

 

[34.45]   Defence counsel took issue with Mankayi that he was giving new evidence and adapting his evidence regarding giving the accused his cellular phone. Nothing turns on this as it is clear from defence counsel’s cross-examination that Accused No 3 used a cellular phone to contact his legal representative. On this aspect Mankayi testified:

 

“I mentioned yesterday that the officer who was supposed to get an affidavit or anything written down from the accused informed me that the accused is no longer making a statement as he already consulted with the attorney and I even mentioned yesterday that as I already indicated to the court that I explained the rights, constitutional rights to the accused and that included the right to remain silent or if he wanted to consult an attorney whatsoever that is his right, so he exercised his right.”

 

[34.46]   Defence Counsel asked Mankayi if he had tried to facilitate the the taking of accused 3’s statement in the police stations closer to Soshanguve Police Station. To which Mankayi replied:

 

“I did not try to do that. . .because normally you want to get somebody who is neutral who does not know anything about the crime scene and if the crime scene is around the same area most probably the police will know about it.”

 

[34.47]   Mankayi, when it was put to him that Accused No 3 had not consented to being taken to Diepkloof, stated that he had consented.

 

[34.48]   Defence Counsel asked Mankayi about certain entries or lack thereof on the standard form, Exhibit “N” that he completed on 7 July 2018 at Soshanguve police station, regarding legal representation or legal aid and other aspects. Mankayi was referred to paragraph 5 of the document paragraph (a) was encircled indicating that he was willing to make a statement. He proceeded to take a statement on Annexure A at page 6 of the document. Mankayi stated that all deletions were initialled by the deponent and himself in the margin on the side of the form and dated.

 

[34.49]    Defence Counsel then put it to Mankayi

 

“…when you interviewed the accused, accused 3 you just told him to sign on the bottom part, you did not read each and everything that was, each and every column to the accused when you interviewed him.”

 

to which Mankayi answered

 

“That is not true M'Lord.  I would not have known his personal particulars which I also indicated here, his date of birth which I indicated here, I would not have known that.”

 

 

[34.50]   In clarification of this aspect the Court asked defence counsel if the crux of his examination was that the witness filled in the form of his own accord and just told the accused to sign without going through the form with him. Defence Counsel confirmed that this is what he was putting to the witness. This is a highly significant aspect where what was put to the witness is contradicted by Accused No 3 in his testimony under cross-examination that he had only seen the form in question, Exhibit “N”, during later consultations with defence counsel at the prison in preparation for the trial. Furthermore Accused No 3  maintained that he had told his defence counsel during this consultation at the prison that Mankayi had filled in the form in his absence,  he was not there at all, and Mankayi had forged his signature and initials .

 

[34.51]   It is also significant that Defence Counsel never put it to Mankayi that he had been present at the Police Offices in Central Pretoria and that he and a certain Mashau from the Hawks had physically assaulted Accused No 3 with MAshau covering his face with a plastic bag and Mankayi holding down his legs.

 

[34.52]   Defence Counsel then took Mankayi to task on certain information on the covering letter to the biology laboratory Exhibit M1 stating that “intelligence suggests that Mr Dihangoane is the gunman in Cash in Transit Robberies”. He asked Mankayi

 

“. . .now what prompted you to you saying that your office request DNA comparison with exhibit submitted for DNA investigations on CIT cases in the country and other cases, what prompted that?”

 

Mankayi stated:

 

“That is exactly what they want from forensic as to what exactly they need to do for you with that kind of exhibit you are sending.”

Defence Counsel then asked:

 

“So just in as far as you know and if you do not know you will just say you do not know, do you know if accused 3’s DNA was found at any of the cash-in-transit heists around the country at this stage?  If you know you know, if you do not know you do not know.”

 

Mankayi answered that he did not know.

 

 

[34.53]   In re-examination State Counsel asked Mankayi if Accused No 3’s affidavit in support of his application for bail was ever presented to him at the bail hearing and he stated that it had never been given to him. In addition Mankayi stated that he had not given oral testimony and his affidavit had merely been submitted to the court. Accused No 3 did not testify either.

 

[34.54]   State Counsel referred Mankayi to page 4, paragraph 7 of Exhibit “N”, the contents whereof were confirmed as having been completed by him as follows:

 

“During the interview I asked the suspect whether he is injured and yes, the suspect indicated that, I asked the suspect to show me the injuries and noticed the following, both hands were swollen and I asked the suspect how and when had he sustained injuries and he replied as follows: injuries occurred due to handcuffs that were placed on him during arrest.” 

 

[34.55]   By mutual agreement between State Counsel and defence Counsel Exhibit “N” was formally handed in as an exhibit. Defence Counsel indicated there was no prejudice to the defence if it were handed in although there were parts thereof that he had avoided in his cross-examination.   This was confirmed to the Court:

 

“COURT:   what I was trying to ascertain is, is there anything in there that you regard to be prejudicial to accused 3?

MR MADIRA:   No.”

 

[35]    Captain Malesela Eliakim Ntini in the service of the Forensic Science Laboratory in Silverton, Pretoria testified and handed in an affidavit Exhibit “O” which had been deposed to by him in terms of section 212(4)(a) and (8)(a) of the Criminal Procedure Act No. 51 of 1977. This set out in detail  his qualifications and experience in the field of ballistics, blood stain pattern analysis and his having dealt with in excess of 3500 cases and having testified on a regular basis in the Courts in the RSA and attended internal and external training interventions. He has been in this field since 2005.

 

His evidence has to be read in conjunction with that of Mkhatshwa who examined the ballistics exhibits in question on 16 July 2018, and Mulungwa who examined the ballistics exhibits in question on 9 May 2018. Ntini examined the ballistics exhibits on 18 October 2018.

 

[35.1]  In a nutshell he stated that he examines firearms and we also does the comparison of exhibits such as bullets and cartridge cases. Without going into the minutiae of his evidence his examination is clearly set out in his affidavit as summarised below. Three ballistics experts were called by the State, including Ntini.

 

[35.2]      On 18 October 2018 during the performance of his duties he received a request from IBIS Administration to compare various LAB numbers

 

LAB 592889/2017, Rietgat CAS221/12/2017, para. 4 of the report

LAB 159279/2017, Kwaggafontein CAS199/02/2017, para 5 of the report

LAB 529457/2016, Soshanguve CAS349/11/2016, para 6 of the report

LAB 256923/2018, Rietgat CAS146/07/2018, para 7 of the report

LAB 355054/2017, Edenvale CAS80/07/2017, para 8 of the report

 

[35.3]      The relevant ballistics examination in casu relate to the tests carried out in respect of the two cartridges recovered in respect of the Rietgat cases dealt with in paragraphs 4 and 7. The results of the examination of

 

[35.4]      He received a case file with LAB 592889/2017 a sealed evidence bag with number PA5000237214 containing

 

·         one fired 7,62 X 39mm cartridge case marked 592889/17B1 (paragraph 4.1),

·         five fired 9mm parabellum calibre cartridge cases marked 592889/17 B14, B16. B29, B33 and B43 (paragraph 4.2) and

·         three fired 5,56 X45mm calibre cartridge cases marked 592889/17 B23, B26 and B27 (paragraph 4.3).

 

[35.5]      He also received a case file with LAB 256923/2018 with a sealed evidence bag with number P2B000256065 containing two fired 5,56 X 45mm calibre test cartridge cases marked 923TC1C and 923TC1D (paragraph 7.1)

 

[35.6]       The results of his examination was that one of the fired cartridge cases marked B23 (paragraph 4.3) matched the test fired cartridge cases in paragraph 7.1 and were fired from the same firearm. In addition the fired cartridge cases in the Kwaggafontein case in paragraph 5.3, the Soshanguve case in paragraph 6.1 and the Edenvale case also matched the test fired cartridges in paragraph 7.1 and were fired from the same firearm used at the Rietgat scene in casu.

 

[35.7]      His affidavit also deals with the sealing of the exhibits in new exhibit bags duly renumbered with their own unique numbers and kept in his locked safe.

 

Cross-examination by defence counsel.

 

[35.8]      Defence counsel went through the motions of testing his evidence and it was established that all the cartridges involved were engraved with the exhibit markings mentioned in the various paragraphs. It was evident from Ntini’s evidence that other ballistics experts carried out different processes with regard to the firearms received and that his task was to match the cartridges fired.

 

[35.9]      Ntini stated, when asked, that test shots were fired at the laboratory and the fired cartridges were engraved 923TC1C and 923TC1D and used for comparison purposes. Two 5,56 X 45mm rounds were fired and the cartridges used.  The Rietgat CAS 221/2017 and CAS 146/07/2018 cartridges were used as reflected in paragraph 10.1.

 

[35.10]   Ntini was asked on what basis could he say that the cartridges mentioned in paragraph 10.1 were fired from the same firearm and he replied that each individual firearm has its individual marks which it leaves on a cartridge when the round is fired, similar to a fingerprint.

 

[35.11]   Ntini was also questioned as regards which firearm fired the cartridges in question in paragraph 4.3 and 7.1 of his report and his answer was:

 

“No, I did not have the firearm.  I only compared the cartridge cases.  The person who examined the firearm is the initial person who did the first examination in here.  I only compared the test cartridge case and of which as long as the test it comes from a particular firearm that was examined and together with these other cartridge cases.”

 

[35.12]   There was no re-examination by State Counsel.

 

[36]       Warrant Officer Eric Fraschia, called by the State to testify, is a member of the South African Police Service and attached to the Local Criminal record Centre at Pretoria North where he is employed as a fingerprint expert and an official draughtsman, photographer and forensic field worker. At 16:50 on 6 July 2018 he investigated the scene at 1582 Block GG, Soshanguve pointed out by Sgt C N Silinda at the time and date mentioned supra, which was the home of Accused No.2, He collected a number of exhibits and took photographs at the scene, numbered 1 – 19. He compiled a photograph album with a key to the photographs with a description of the items photographed and listed the exhibits together with the forensic bag numbers in which these were placed, which he duly sealed upon completion of his task at the scene. His affidavit was handed in and admitted into evidence as Exhibit “E”. Fraschia confirmed the contents of his affidavit as being true and correct and gave oral evidence thereanent and as to what he did at the scene. 

 

[36.1]            He testified that when he arrived on the scene he made evaluations and then photographed the scene, as well as collected exhibits.

 

[36.2]            Fraschia had Exhibit “E” before him when he testified. He proceeded to deal with the contents in his evidence before Court  as follows below. As regards the photographs he testified that:

 

§      Photos number one and two indicate the outside of the scene at house number 1582 Block GG, Soshanguve. 

 

§     Photo number three indicates the passage leading to a closed bedroom door inside the house. It was closed when he arrived on the scene.

 

§     Photos number four and five shows the inside of the bedroom after the door was opened.

 

§     Photos number six and seven indicate a black bag that was found on the floor inside the bedroom.

 

§     Photos number eight, nine and ten shows balaclava and pairs of gloves that were found inside the black bag inside the bedroom. It was two black gloves and one black and blue glove.

 

§     Photo 11 shows the assault rifle and magazines that were found inside the black bag and stated when asked how many assault rifles there were he said two assault rifles with two magazines. Two assault rifles with two magazines. The magazines were taped to each other, so it is actually four magazines, but on the photo it is visible, two of them

 

§     Photo 12 is a close-up photo, photo 12 and 13 are close-up photos of the magazines that were found inside the black bag.    The magazines were taped to each other, so it is actually four magazines but on the photo it is visible two of them.  The next photos will show that they (the magazines) are separated.

 

§     Photos number 12 to 15 show the magazines and cartridge cases that were found inside the black bag.  The cartridge cases were removed by him out of the magazines to show the quantity on the photos.

 

§     Photos numbers 16 and 17 show the assault rifles with their numbers removed. 

 

§     Photo number 18 shows the assault rifles and photo number 19 shows the number that was removed, in an area where the number was supposed to be the number is removed, it is scratched off.

 

[36.3]      Fraschia who stated that he was on his own when he arrived at the scene and testified that apart from Silinda there were many police officers on the scene and outside the scene, but could not give the exact number. There was a lady on the scene who lived in the house and he did not know if she was a suspect. There were a lot of police officers in plain clothes also on the scene.

 

[36.4]      When asked by State Counsel if he recalled any other person on the scene whom he may have viewed as a suspect or did he just go about his job without observing other things. His reply was, “not that he could think”.

 

[36.5]      He found the scene as it was, took photos and then handled the firearms in terms of taking out the ammunition from the magazines. He photographed the exhibits first and then he collected them and placed them in forensic exhibit bags.

 

[36.6]      His evidence was further in accordance with the exhibits listed in detail on pages 1 and 2, paragraph 5.1 through to paragraph5.14 included in the album Ehibit “E”. These exhibits which were found in the bag, also listed as an exhibit, were the magazines, the cartridges (rounds) which were counted as reflected in the list, the assault rifles, the two balaclavas and gloves and swabbing evidence collection kits with their unique reference numbers. These exhibits A, A1 and 2, B, B1 and 2, C, C1 and 2,  D, D1 and 2, E1, E2, F1, F2 F3 and G. These exhibits were duly sealed in forensic bags with their unique PA numbers. 

 

[36.7]      His evidence as led was as follows:

 

“Exhibit A were two magazines with 55 cartridge cases found inside a black bag inside the bedroom.  Exhibit A1 and A2 it is one swab evidence collection kit with number 14DCAC2344 collected from Exhibit A and sealed in Exhibit Bag PA4001912750.That is Exhibit A1 and A2 were swab kits that were collected from the magazines.  I sealed them inside exhibit bag PA4001912750.  Exhibit B were two magazines with 61 cartridges found inside the black bag inside the bedroom.  Exhibit B1 and B2 were swabbing evidence collection kit number 14DCAC2343 collected from Exhibit B and sealed in forensic bag number PA4001912749.

 

Exhibit C was one assault rifle with no serial number found inside the forensic, found inside the black bag inside the bedroom.  Exhibit C1 and C2 is one swabbing evidence collection kit number 14DCAC2349 collected from Exhibit C, sealed in forensic bag number PA400 1912755.

 

Exhibit D is one assault rifle with no serial number found inside black bag in the bedroom.  Exhibit D1 and D2, one swabbing evidence collection kit number 14DCAC2350 collected from Exhibit D and sealed in forensic bag number PA4001912756. 

 

Then Exhibit E1 is one black balaclava found inside the black bag inside the bedroom, sealed in forensic bag number PA3001145130. Exhibit E2, one black balaclava found inside the black bag in the bedroom, sealed in forensic bag number PA3001145131.

 

Exhibit F1 is one black glove found inside the black bag inside the bedroom, sealed in forensic bag number PA6001567315. 

 

Exhibit F2, one black glove found inside the black bag inside the bedroom, sealed in forensic bag number PA6001567745 (which number he corrected to 45 and nit 48 when questioned by State Counsel).

 

Exhibit F3 was one black and blue glove found inside the black bag in the bedroom, sealed in forensic bag number PA6001567744. 

 

Exhibit G was the black bag that was found in the bedroom.  It was collected and sealed in forensic bag number PA3000701545.”

 

He added that:

 

“Exhibit A was sealed in a forensic bag number PA4001490539.  Exhibit B was sealed in exhibit bag number PA30000099207M.  Exhibit C was sealed in exhibit bag number PAR000491552.  Exhibit D was sealed in exhibit bag number PAR000491553.  Exhibit A1, A2, B1, B2, C1, C2, D1, D2, E1, E2, F1, F2, F3 and G were resealed in exhibit bag number PA3000099091N and all the above mentioned bags were marked as SAPS Rietgat with the case number 146/07/2018, and the exhibits were handed in at the forensic science laboratory on the 9 July 2018.”

 

[36.8]      The exhibits as mentioned above were resealed as they were all going to one section at the forensic science laboratory so all the exhibits which were sealed in their own forensic bags  were placed in one big bag which was resealed so that they would go to one section at the forensic science laboratory and not get lost.

 

[36.9]      The exhibits were taken by Constable Mosana from his office to the forensic science laboratory on 9 July 2018, together with a covering letter dated 8 July 2018, Exhibit “P1” and a receipt from the Forensic Science Laboratory dated 9 July 2018, Exhibit “P2” was issued.

 

[36.10]   After visiting the scene Fraschia had gone to his office and written up the exhibits in the SAP 459 exhibit register and the exhibits were locked up in his office in a safe box. On the next day Fraschia booked the exhibits into the safe as it was after hours. Only Fraschcia had a key to that box. Nobody else had access to the exhibits.

 

[36.11]   Fraschia did not witness anybody being assaulted at the scene.

 

Cross-examination by defence counsel.

 

[36.12]   Defence Counsel asked Fraschia if he knew anyone called Captain Mongwe from the LCRC, Pretoria North, as Sgt Silinda that he testified about told this court that the exhibits were booked by Captain Mongwe from LCRC, Pretoria North into Rietgat police station as per SAP13/978/2018. Fraschia stated that there was nobody like that at his office. He was the only person who had handled the exhibits that he testified about, and which he had sealed and resealed in the larger were in his possession the whole time. He did not see any other exhibits at the house in question.

 

[36.13]   Fraschia when questioned stated that he could not remember if the door to the room where the exhibits were encountered was locked or not.

 

[36.14]   Fraschia confirmed, when asked that Exhibits E1, E2, F1, F2, F3 and G mention in paragraphs 5.9 to 5.14in Exhibit “E” were not swabbed by him. His evidence was:

 

“E1 is the one black balaclava, E2 is another black balaclava, F1 is one black glove, F2 is another black glove and F3 is the black and blue glove and G is the black bag.  M’Lord these exhibits were collected as a whole and sent into the biology section of the forensic science laboratory M’Lord, so no swabbing was done.”

 

[36.15]   Defence Counsel questioned Fraschia on his having swabbed the magazines and the assault rifles for any sweat. In the light of Van Dyk’s evidence that there was no DNA recovered from these exhibits this line of questioning is not traversed herein.

 

[36.16]   As to why the gloves and balaclavas were not swabbed by Frascia stated that these were going to be sent to the biology section at the laboratory for DNA testing and analysis. This line of questioning is not repeated herein for the sake of avoiding prolixity as Defence Counsel indicated in Court, when asked by the Court, that he was not going to dispute that these exhibits were sent and received there.

 

[36.17]   As regards cross-examination as to what Franschia observed at or in the house at 1582 Soshanguve, which was common cause was Accused No 2’s home, more specifically as to whether he had seen someone there who was handcuffed Fraschia testified that:

 

“As I mentioned before there were many people there, policemen in plain clothes and uniform.  I was approached by Sergeant Selinda.  He showed me the points.  I concentrated on the work that I had to be doing so I cannot say that there somebody like that on the scene.  I did not notice it.”

 

[36.18]   Fraschia agreed that he had taken the items out of the bag in order to photograph them.

 

[36.19]   In re-examination by State Counsel, Fraschia clarified the position as to delivery of the exhibits to the Balistics and to the Biology sections of the laboratories that there were four bags that went to ballistics  containing the swabs, the firearms, magazines and rounds received by Mothlabane according to the receipts Exhibits “P3, P4, P5and P6” and a certain Booysen at the biology section received the other bag containing the  balaclavas and gloves as per the receipt Exhibit “P7”

 

[37]       Captain Meldon Qamu Mkhatshwa testified that he is a Captain in the South African Police Services attached as a Senior Forensic Analyst and is an examiner of Forensic Ballistics in the Ballistics Section of the Forensic Science Laboratory in Silverton, Pretoria. His evidence regarding his examination of the ballistic exhibits on 16 July 2018 has to be read in conjunction with that of Ntini who examined the ballistics exhibits in question on 18 October 2018.and Mulungwa who examined the ballistics exhibits in question on 9 May 2018.

 

Mkhatshwa has been in this field for 11 years. He testified in Court and handed in an affidavit Exhibit “Q” deposed to by him in terms of section 212(4)(a) and (8)(a) of the Criminal Procedure Act No. 51 of 1977. This affidavit sets out his qualifications, courses that he underwent and experience in the field of ballistics in detail.  Defence Counsel did not object to the affidavit being handed in in terms of section 212 of Act 51 of 1977. His evidence was as follows:

 

[37.1]  On the 16 July 2018 during the performance of his official duties he received four entered sealed evidence bags marked, inter alia, Rietgat CAS 146/07/2018 from case administration of ballistic section.

 

[37.2]  He opened the bags and found the following in the first bag which had been a sealed evidence bag with number PAR000491552, as per paragraph 3.1 of his affidavit  one 5.56 by 45-millimetre calibre Vector model LM5 assault rifle, serial number obliterated and he marked it 256923/18C.

 

[37.3]   In the second bag which had been a sealed evidence bag with number PAR000491553 as per paragraph 3.2 of his affidavit, containing one 5.56 by 45-millimetre calibre Dashprod model SAR M14 semi-automatic rifle, serial number obliterated and he marked it 256923/18D.

 

[37.4]  In the third bag which had been a sealed evidence bag with number PA3000099207M as per paragraph 3.3 of his affidavit, containing two magazines unmarked.  Then again as per paragraph 3.4 of his affidavit it contained 61 – 5.56 by 45-millimetre calibre cartridges (rounds) and he marked two of them as 256923/18B1 and B2 respectively and used two of them as tests as indicated in paragraph 6.3 of his affidavit. After firing the two test rounds he marked those cartridges as 923TC1D and 923TC2D and the bullet points he marked as 923TB1D and 923TB2D.

 

[37.5]  In the fourth bag, a sealed evidence bag with number PA4001490539 as per paragraph 3.5 of his affidavit which contained two magazines unmarked containing 65 – 5.56 by 45-millimetre calibre cartridges (rounds) he marked two of them as 256923/18A1 and A2 respectively and used two of them as tests as indicated in paragraph 6.2 and After firing the two test rounds he marked those cartridges as 923TC1C and 923TC2C and the bullet points he marked as 923TB1C and 923TB2C.

 

[37.6]  These the exhibits that he had received and proceeded to conduct his examination firstly to determine whether the ammunition, the cartridges that I have are the real ammunition or not. He examined the cartridges mentioned in paragraphs 3.4 and 3.6 and found that they consisted of primer, cartridge case, bullet and propellant and were designed and manufactured to be fired by a centre-fire firearm.

 

[37.7]  As indicated in paragraph 6.1 of his affidavit the two rifles mention in paragraphs 3.1 and 3.2 were functioned normally without any obvious defects.

 

[37.8]  As indicated in paragraph 6.2 of his affidavit he fired two rounds with the firearm mentioned in paragraph 3.1, which was the Vektor Model LM5 which he had marked 256923/18 C and the ammunition used and fired for test purposes was marked as 923TC1C and 923TC2C on the cartridge cases and 923TB1C and 923TB2C on bullet.

 

[37.9]    As indicated in paragraph 6.3 of his affidavit he fired a test shot with the firearm mentioned in paragraph 3.2, which was the Dashprod Model SAR M14 which he had marked 256923/18 D and the ammunition used and fired for test purposes was marked as 923TC1D and 923TC2D on the cartridge cases and 923TB1D and 923TB2D on bullet.

 

[37.10]   The Court notes at this stage that as indicated by Ntini in paragraph 10 read with 10.1 of Exhibit “O” the fired cartridge case mentioned in paragraph 4.3 of Exhibit “O” and marked 592889/B23 and the test fired cartridge marked 923TC1D were fired in one firearm. As indicated above Mkhatshwa used the Dashprod Model SAR M14 specified in paragraph 3.2 of Exhibit “Q” to fire a test shot and marked the cartridge case 923C1D.

 

[37.11]  As indicated in paragraph 7 of his affidavit he examined and tested the mechanisms of both of the assault rifles mentioned in 3.1 and 3.2 and found them to be self-loading, but not capable of discharging more than one shot with a single depression of the trigger. He also found that the devices were manufactured or designed to discharge centre-fire ammunitions, which means these are semi-automatic rifles.

 

[37.12]   As regards his examination of the magazines mentioned in 3.3 and 3.5 of his affidavit he found as reflected in paragraph 8.1 thereof that the magazines mentioned in 3.3. and 3.5 housed 5.56 by 45-millimetre calibre ammunition. This was the ammunition that one could put in that magazines.  In paragraph 8.2 he found that the magazines mentioned in 3.3 and 3.5 had the capacity to house 30 cartridges. The magazines mentioned in paragraph 3.3 formed part of the Dashprod rifle. In paragraph 8.4 he found that the magazines mentioned in paragraph 3.5 formed part of a Vector R4, LM4, R5, LM5, R6, LM6 rifle, meaning that that magazines can be used on all of these kinds of firearms.

 

[37.13]  Paragraph 9 of his affidavit indicated that through an electro etching process he partially recovered the serial number on the Vektor LM5 mentioned in paragraph 3.1 of his affidavit but could not determine the serial number on the Dashprod rifle mentioned in paragraph 3.2 of his affidavit.

 

[37.14]  As regards paragraph 10 of his affidavit Mkhatshwa testified that this provided confirmation that the conclusions arrived at were based on facts established by means of an examination and processes which require knowledge and skills in forensic ballistics.

 

[37.15]  As regards paragraph 11 of his affidavit Mkhatshwa testified that this dealt with the disposal of the exhibits on 16 July 2018 and his resealing thereof in new evidence bags with new numbers which were duly sealed by him and then handed over to Case Administration. His evidence dealing with paragraphs 11.1 to 11.4 of his affidavit was:

 

“After examinations the exhibits and tests mentioned in 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 6.2 and 6.3 were deposed of as follows. 

11.1 – On 16 July 2018 the exhibits mentioned in 3.1, 3.5 and 3.6 unmarked were sealed in an evidence bag with number PAR000340220 and handed over to case administration of ballistic sections. 

 

Then 11.2 – On 16 July 2018 the exhibit mentioned in 3.2, 3.3 and 3.4 unmarked were sealed in an evidence bag with number PAR000340202 and handed over to case administration of the ballistics section.

 

11.3 – On 16 July 2018 the exhibits and tests mentioned in 3.4 marked 256923/18B1, B2, 3.6 marked 256923/18A1, A2, 6.2 marked 923TC2C, 923TB1C, 923TB2C and 6.3 marked 923TC2D, 923TB1D and 923TB2D were sealed in an evidence bag with number PA6000652982U and filed in case file with Lab 256923/18.

 

11.4 – On the 16 July 2018 the test mentioned in 6.2 marked 923TC1C and 6.3 marked 923TC1D were sealed in an evidence bag with number... On that bag number M’Lord there is an error at the end of the bag.  I wrote Y instead of V.  Okay the bag number is PA6000652983V not Y and filed in case file with Lab 256923/18.”

 

[37.16]  As regards paragraph 12 of his affidavit Mkhatshwa testified and confirmed that during the performance of my official duties the exhibits and tests mentioned were for the purpose of their examination kept in my custody under lock and key from 16 July 2018 until 16 July 2018.

 

[37.17]  He testified that nobody interfered with the testing of a firearm.  Each and everyone was allocated his or her exhibits.  One opened the bags, marked them, and went and conducted the tests and then sealed the exhibits.  They were then taken to the very same place where they had been collected. There was no interference.

 

[37.18]  Defence Counsel in cross-examination went through the process of determining the procedures that were followed at the Forensic Science Laboratory at Silverton and was told that the admin personnel who are working at the case administration of ballistics.  These people are responsible to go and collect the exhibits in the reception and then they put it at ballistics safe.  The analysts went every day to administration and collected the exhibits and then start processing them. He received the four forensic bags in question from administration.

 

[37.19]  Defence Counsel’s further questions revolved around the receipts received by Fraschia’s LRC division Exhibits “P2” delivered to Arcadia. Makwatsha stated that items for ballistic analysis are brought to them in Silverton. He could not comment further as to delivery of exhibit bags except to state that he collected the four exhibit bags he testified about from administration in the course of his duties.

 

[37.20]  Defence Counsel pointed out that according to Fraschia he had counted 55 rounds, yet Mkhatshwa in his affidavit mentioned that there were 65, to which Mkhatshwa stated that he had counted them personally and found that there were indeed 65 live rounds and that Fraschia must have miscounted them.

 

[37.21]  Mkhatshwa testified that he had used two of the live rounds to fire test shots with the two assault rifles received as was evident from his evidence in chief.

 

[37.22]  Mkhatshwa testified when asked by Defence Counsel that he was the person who had marked the ammunition used for test purposes as stated in paragraphs 6.2 and 6.3 of Exhibit “Q”.

 

[37.23]  As regards the differences in the PA numbers, when cross-examined on this, Mkhatshwa stated that on the affidavits of Ntini and himself bags with certain PA numbers when received are opened, exhibits were examined and resealed in new evidence bags with new PA evidence bag numbers.

 

[37.24]  Mkhtshwa also pointed out, when questioned on differences in PA numbers that featured in Ntini’s report, that Ntini had done inter-comparisons with other scenes and the PA numbers from the other outstanding matters  were not relevant to the Rietgat LAB and CAS numbers.

 

[37.25]  The cartridges (live rounds) in paragraphs 3.4 and 3.6 in Exhibit “Q” were all the same, he stated. 5,56 X 45mm rounds.

 

[38]       Warrant Officer Matodzi Getruida Mulungwa testified that she is a Warrant Officer in the South African Police Services attached as an examiner to the Ballistics Section of the Forensic Science Laboratory in Silverton, Pretoria. Her evidence regarding her examination of and identification of fired cartridge cases and fired bullets and microscopic individualization of fired cartridge cases on 9 May has to be read in conjunction with that of Ntini who examined the ballistics exhibits on 18 October 2018 and Mkhatshwa, who examined the ballistics exhibits on 16 July 2018.

 

She gave oral evidence and handed in an affidavit Exhibit “R” deposed to by her in terms of section 212(4)(a) and (8)(a) of the Criminal Procedure Act No. 51 of 1977. This affidavit sets out her qualifications, training interventions and experience in the field of ballistics in detail.  Defence Counsel did not object to the affidavit being handed in in terms of section 212 of Act 51 of 1977. Her evidence was as follows:

 

[38.1]              On 9 May 2018 during the performance of her official duties she received an intact sealed evidence bag with number PA001725727 marked Rietgat CAS 221/12/2017 from case administration of the ballistics section. It can be noted at this stage that these were the exhibits sealed by Captain Thierry Werner Beheydt, as appears from paragraph 2 and 3  of his affidavit included in the album Exhibit “C” and dealt with in his testimony in Court, covering exhibits B1 to B45 which were cartridge cases found at the scene, their location at the scene depicted in the photographs bound in the said album. Beheydt’s evidence appears infra.

 

[38.2]      The fired 7,62 X 39mm B1 to B13, B19 to B22 and the fired 9mm cartridges B14 to B18, B29,B31 to B35, B43 and B45 specified in paragraphs 3.1 and 3.2 of Exhibit “R”, were collected at the  scene of the cash in transit robbery and murders in casu, but are not of any particular significance in  connecting either of the two assault rifles found in the bag at the home of Accused No 2 on 6 July 2018. Neither is the misfired cartridge (round) mentioned in paragraph 3.4 of Exhibit “R” marked C1, or the undetermined calibre fired bullet marked 592889/18 D1, significant except in so far it was also located and photographed at the scene by Beheydt .

 

[38.3]      Paragraphs 3.3 of Exhibit “R” and the microscopic examination of the 15 5.56 X 45mm calibre fired cartridges B23 to B28, B30, B36 to B42 and B44 collected by Beheydt and received by the Forensic Science Laboratory in Silverton are of importance, and more especially B23, regard being had to Mkhatshwa and Ntinni’s evidence and affidavits Exhibits “O”  and “Q”.

 

[38.4]       Mulungwa examined the fired cartridge cases mentioned in paragraphs 3.1 and 3.2 and her findings are set out in paragraph 6.1 of her affidavit.

 

[38.5]      Of significance in this case are her findings in paragraph 6 read with paragraphs 6.6, 6.7 and 6.8 of her affidavit where she compared the individual and class characteristics markings transferred by firearm components in respect of the cartridges specified in paragraphs 3.1 to 3.3 of her affidavit. Her evidence was to the effect that from these markings she concluded that nine firearms were used to fire the fired cartridges received by her. As appears from paragraph 6.7 the fired cartridges marked 592889 B23 to B25 were fired from the seventh individualised firearm which basically had fired three shots.

 

[38.6]      She resealed the exhibits mentioned in paragraph 3.1 to 3.5 of her affidavit on 10 May 2018 as per paragraph 8 read with paragraphs 8.1and 8.2 of Exhibit “R”.

 

[38.7]      The exhibits mentioned in paragraph 3.1 marked 592889/17 B1, mentioned in paragraph 3.2 marked 592889/17 B14, B16, B29, B33 and B43, mentioned in paragraph 3.3 marked 592889/17 B23, B26, and B27 were sealed in an evidence bag with number PA6001783412 and filed in the case file with LAB 592889/17.

 

[38.8]      The exhibits mentioned in paragraph 3.1 marked 592889/17 B2 to B13, B19 to B22, mentioned in paragraph 3.2 marked 592889/17 B15, B17, B18, B31, B32, B34, B35, B44 and B45, mentioned in paragraph 3.3 marked 592889/17 B24, B25, B28, B30, B36 to B42 and mentioned in paragraph 3.4 and 3.5 were sealed in an evidence bag with number PA6001783411 and filed in the case file with LAB 592889/17.

 

[38.9]      During the performance of her duties the exhibits mentioned for the purpose of their examination were kept in her custody under lock and key from 9 to 10 May 2018.

 

Cross-examination by Defence Counsel.

 

[38.10]   When questioned as to what marks she referred to in her affidavit she stated that firearms will leave identifying marks on cartridges. She did microscopic examinations of the cartridges. The cartridges mentioned in paragraph 3.3 and the misfire mentioned in paragraph in 3.4 were all of the same calibre 5.56.

 

[38.11]   There was a mix of firearms with different calibres used at the scene.

 

[39]       The next State witness called was Captain Thierry Werner Beheydt who testified that he is a member of the South African Police Service stationed at Gauteng North Crime Scene Management and was placed at the Local Criminal Record Centre in Pretoria where he was employed as a crime scene investigator. On 10 December 2017 he visited the scene of a cash in transit armed robbery at the Soutpan Road in the Rietgat area indicated to him by Lieutenant Colonel D Bila of the South African Police Service.

 

[39.1]      For purposes of this judgement it is unnecessary to summarise Beheydt’s evidence in detail. In addition to two affidavits deposed to by him which are clear, he gave oral evidence regarding his observations at the scene  what he had photographed, marked positions of the relevant exhibits which he listed as well as recovery and exhibit bag sealing of exhibits inter alia fired cartridge cases, two other cartridges and debris from inside the cash truck YMT729GP for analysis by an explosive expert.

 

[39.2]      The album compiled by , was admitted in evidence as Exhibit “C” containing the two affidavits aforementioned, deposed to by him, a key to the forensic exhibits, a computer sketch plan with a key thereto and photographs of the scene as well as photographs taken of the bodies of the two deceased with body number 1100/17 in the presence of Dr Modisa and the deceased with body number 1099/17 in the presence of Dr Onoya.

 

[39.3]      As set out supra in this judgment formal admissions as per Exhibits “A” and “A1” were made by the Accused in terms of section 220 of the Criminal Procedure Act No. 51 of 1977 as to the contents of Exhibit “C”:

 

“That the photographs of the scene where the deceased mentioned in Count 6 of the indictment died, plans and key thereto as compiled by Thierry Werner Beheyetd as well as his accompanying affidavit are admitted as being a true reflection of the said scene as Exhibit “C” hereto.”

 

[39.4]      It is to be noted that the deceased in Count 7 died in hospital as a result of injuries sustained at the scene in question, which was formally admitted by the Accused.

 

[39.5]      Beheyd’s capturing of the crime scene on camera shows that multiple shots were fired at the scene , the positions of the spent cartridges are clearly indicated in the photographs and mapped out on the computer sketch plan. This includes where the fired cartridge B23 was found, which is relevant in this matter. It is noteworthy at this stage that Mulungwa’s affidavit [4]supra confirmed that at least nine firearms were used at the scene. Beheyd was not in a position to state what the calibre of fired cartridges and misfired rounds was, as he is not a ballistics expert.

 

[39.6]      The photographs taken by Beheydt show further that the Fidelity Cash Solutions truck YMT729GP was severely damaged as a result of the interior of the cash vault section and safe door being blown apart by what was found to be consistent with commercial explosivs having been used by the perpetrators in the robbery. This is apparent from Exhibit “W” an affidavit by Sgt Thabiso Errol Mogakane, the contents whereof was admitted by the defence, an inspector of explosives who visited the scene on 10 December 2017, and Exhibit  “X” an affidavit tendered in evidence with the consent of Defence Counsel in terms of section 212 (4)(a) and (8)(a) of Act 51 of 1977 from the expert from the Forensic Science Laboratory in Silverton, Warrant Officer Bulelwa Rawana after examination of the sealed exhibits provided to him by Beheydt.

 

[39.7]      The damage to the Fidelity Cash Solutions Isuzu escort vehicle DM 55 MF GP it was shot at and the driver thereof Klaas Sehemo (the deceased in count 6) was shot while he was driving it, collided with the Golf 5 with registration number DJ 94 CN GP that had been driven by Mlambo. Photographs in the album show the deceased Sehemo lying on the front seat of the vehicle.

 

[39.8]      Beheydt’s forensic affidavit in the album contains all the relevant sealed forensic bag numbers and there are photographs of the forensic bags with their numbers visible. It is noted that the fired cartridge exhibits examined by Mulungwa supra were sealed by Beheydt on 12 December 2017 in a forensic bag with number PAD001725727. When in his safekeeping he testified there was no interference with the exhibits. Exhibits “S” was his covering letter to ballistics under the said forensic sealbag number mentioned above and “S2” was the acknowledgment of receipt thereof.

 

[39.9]      In cross-examination Defence Counsel asked where the bullet D1 was found and was shown in photographs 128 and 130 that the bullet was found inside the Isuzu Escort vehicle.

 

[40]       At this stage, further formal admissions in terms of section 220 of Act 51 of 1977 of the following were made on receiving Accuseds’ instructions and confirmation thereof:

 

[40.1]      The loss suffered by Fidelity Cash solutions as to the amount of money stolen was admitted as having been R641 790.00, as per Exhibit “T”.

 

[40.2]      The loss in respect of the damage on the cash vehicle of Fidelity Cash Solutions, registration number being the YMT 729 GP, a Toyota vehicle was admitted as amounting to R142 416.77, as per Exhibit “U”.

 

[40.3]      The loss in respect of two 9mm pistols and one rifle amounting to a total of R30 000.00 was admitted, as per Exhibit “V”.

 

[41]       The State then called Constable Mpho John Mosana, a constable in the South African Police Service attached to the Crime Intelligence division in Gauteng and stationed at the Local Criminal Record Centre in Pretoria North, where Warrant Officer Eric Fraschia was his team leader.

 

[41.1]      On Monday 9 July 2018 while he was on duty there were exhibits that had been  collected over the  weekend. He was requested to take those exhibits to the Forensic Science Laboratory.  He went to the SAP 459, the our storage that they used. He was there with the exhibit clerk and Warrant Officer Fraschia, who had to show him the package or the exhibits that he had to take to forensics.  After those exhibits were shown to him he booked them out in SAP 459 register, signed the register and took them to the forensic science lab. The exhibits were inside sealed forensic bags.

 

[41.2]      According to Mosana’s evidence, Fraschia’s exhibits, inside the exhibit bag were firearms and rounds and there was a forensic bag that contained gloves and then those gloves were taken to the biology section in Arcadia. He took the ballistics exhibits to Silverton

 

[41.3]      He received receipts for the sealed exhibit bags and was referred to Exhibits “P1” and “P2”

 

[41.4]       In cross-examination Defence Counsel laboriously questioned him on what he could see in the bags and why he mentioned five bags and not four, but as pointed out to counsel all the exhibits were placed in one big bag by Fraschia. Mosana was delivering the exhibits and it was pointed out to Defence Counsel that a number of questions he was asking ought to have been put to Fraschia.

 

[41.5]      In re-examination State Counsel sought to clarify matters and introduced Exhibits “P3” to “P7” further typed receipt documents which indicated as to which division the exhibits were taken and received. “P3” to “P6” were receipts issued by ballistics in Silverton and “P7” was received and receipt issued by the biology section.

 

[42]        As regards the initial Section 220 admissions made in Exhibit “A” as indicated in paragraph [18] of this judgement, Counsel for the defence indicated on 13 November 2019 during the trial,  that he had revised the initial admissions handed in taken instructions from the Accused, who had consented thereto, and handed the revised version of the admissions as Exhibit “A1”. Exhibit “A1” is a repetition of Exhibit “A”, correcting and amplifying certain details of facts admitted.

 

[43]       As regards an application for amendment of the indictment in respect of Count 13, prior to the State closing its case, the Defence stated that there was no prejudice to the Accused. The Court allowed the amendment which reads as appears infra in paragraph [5] of the judgment.

 

[44]       Further formal admissions made: The defence formally admitted the contents of the affidavit of Thabiso Errol Mogakane in terms of section 220 of Act 51 of 1977, consented to and confirmed by the Accused. He is a sergeant in the South African Police Services stationed at the South African Police Services Criminal Record and Crime Scene Management section in Pretoria, attached to the Explosive Section in Pretoria which was received in evidence as Exhibit “W”.  He is a Sergeant in the South African Police Services stationed at SAP Criminal Record and Crime Scene Management, attached to the explosive section in Pretoria.

 

[45]       Mogakane attended the scene, handled the scene with regard to the explosives, collected the exhibits with regard to the remnants of the explosives used there and delivered them personally, duly  sealed by him in an exhibit bag under seal number PA4003352997 to the South African Police Service’s  Explosives Section in Pretoria.

 

[46]       Paragraph 3 of Mogakane’s affidavit, Exhibit “W” contains hearsay as to what was alleged to have happened at the scene, and the Court divorces its mind from that. However, paragraph 4 sets out direct evidence as to his own observations and post blast investigation. As indicated in Beheydt’s evidence, photographs were taken of the blast damage. Mogakane identified the seat of the explosion inside the cash truck in question at the middle metal door which led to the vault and the metal make-up of the vault section was ripped apart, torn and twisted which corresponded with the shattering effect of high explosives, the residue detected by him inside the truck was in line with the heat generated from  high explosives, A piece of explosives remnant, a durafuse safety fuse was found on the floor inside the cash truck, which was collected for forensic analysis. He also carried out a swabbing process for forensic analysis. All the exhibits were sealed in an exhibit bag as mentioned in the previous paragraph.

 

[47]       Further formal admissions made: Defence Counsel made a further admission in terms of section 220 of Act 51 of 1977 on behalf of the Accused, consented to and  confirmed by them, of  the contents of the affidavit of Warrant Officer Bulelwa Rawana of the South African Police Service, a forensic analyst, attached to the Scientific Analysis Section of the Forensic Science Laboratory in Silverton, Pretoria. The affidavit was admitted into evidence as Exhibit “X”.

 

[48]       The exhibits received by Rawana contained in the exhibit bag marked PA4003352997, are described in paragraph 3.6 to 3.6 as delivered by Mogakane.    Under paragraph 6 of Exhibit “X” Ruwana determined, in paragraph 6.2 and 6.3, that the exhibits set out in paragraph 3.3. and 3.5 contained ammonium nitrate and monomethylamine nitrate and these were components of ammonium nitrate based commercial explosives.

 

[49]       At this stage of the trial, State Counsel closed the State’s case.

 

[50]       Defence Counsel brought an application for a discharge in terms of section 174 of the Criminal Procedure Act, No. 51 of 1977 on 13 November 2019 which was opposed by the State and argued in Court by both parties. On 14 November 2019 the Court handed down a written judgment dismissing the application for discharge in respect of both Accused.

 

Commencement of the defence case.

 

[51]        Defence Counsel called both Accused, Tsakani Lina Mdlele, Accused no 3’s wife, a magistrate from the Pretoria North Magistrate’s Court, Ms Rapulana , who had presided over the first appearance of the Accused on 9 July 2018, and Sergeant David Hlongwana, who was in charge of the police cells at Soshanguve South African Police station on 6 and 7 July 2018, to testify.

 

[52]       Defence Counsel indicated that he was also considering leading medical evidence regarding injuries allegedly sustained by Accused No 3 as a result of alleged assaults by the police this did not happen.

 

[53]       Lizzy Maphefo Lekgotoane, Accused No 2, a 68 year-old lady, who had lived in her home for years, gave evidence in her own defence and also testified on various aspects beneficial to the defence of Accused No 3. She did not deny that a bag containing firearms and other exhibits was found in her house, but stated  that she had no knowledge of the contents of bag brought to her for safekeeping by Executive, the former Accused No1. As indicated supra in paragraph [20] of the judgment she made gave a plea explanation. There were certain minor differences between the contents of the statement and her testimony in chief, but she was given the opportunity to clarify these at the end of her evidence [5]. 

 

[54]       She testified that Accused No 3, was never in her house on 6 July 2018 contradicting the evidence of Siinda and Machete. She testified about two assaults on Accused No 3.  The first was at Riegat police station, on 6 July 2018 in the evening,   Accused No 3, whom she stated she met there, a short chubby man, whom she later testified was called Jabu, and a light-complexioned tall man, apparently called Jafta  were severely assaulted by the police. It is significant that according to the cell register for 6 July 2018, Jabu and Jafta were not there. Jabu was detained the next day. The alleged assault at the Hawks offices the next day was not personally witnessed by her, but she heard Accused No 3 screaming. The material parts of her evidence now follow:

 

[54.1]      In was common cause that she lived in house number 1582 block GG Soshanguve, depicted in photographs 1 and 2 of Exhibit “E” the interior whereof is depicted in photographs 3, 4 and 5 of the bedroom in which the black bag referred to in her evidence depicted in photographs 6 and 7 was encountered by State witness Fraschia.

 

[54.2]      She testified that at 08:00 on Friday 6 July 2018 she was in bed and had received a call at 08:00 from her neighbour Executive Letshoa who asked her to open her gate whereupon he entered the yard and he was carrying a bag and then he said he wanted her to keep this bag.

 

[54.3]      According to her evidence she pointed a spot in the bedroom and said he could put the bag there. She waited in the passage. He opened the door of the bedroom, he placed it next to the bed on the floor and he said to her  ‘mother-in-law can you please keep this bag for me’ and she told him to place it.   He placed the bag in the bedroom, pulled shut the door and left.

 

[54.4]      Her evidence was further that he did not tell her what was contained inside the bag and did not open the bag. She did not open the bag while Executive was in the house.

 

 

[54.5]      She stated that she was not related to Executive, but regarded him as family, invited him family ceremonies and called him when she had problems.   He was like an uncle to her kids.

 

[54.6]  She was not well on that day as she was sick and went back to sleep in her bedroom and around 14:00 when I woke up and I went to the bathroom outside, went back inside. She had opened the curtains of a bedroom and then saw a man outside, waving and calling her. A second man joined him.

 

[54.7]  She stated that she went out of the bedroom and I thought to herself that this person can’t see the door. When she was in the passage she realised that there were so many people in my house inside the dining room. When Executive had left he had just closed the door, it was not locked. She stated that she had not opened the door for these people. Nobody had knocked at the door.

 

[54.8]  They were police officers, some they were in uniform.  They greeted, and she responded. They said, “where is the bag” and she said, “whose bag”. They replied and said, “that bag that was brought here”. She went and pointed it out.

 

[54.9]  At this point in her evidence when Defence Counsel referred to Sgt Silinda who had testified that he had come to her house on 6 July 2018 she stated she could not remember him remember because there were many people and she could only point out two people, a woman whom she was talking to and a white male.

 

[54.10]  When Defence Counsel asked her about the police officer who had testified that he arrested her and told the court that he had introduced himself and produced an appointment certificate to show that he is a police officer, she replied that this was not true. She stated that none of the police officers who had been in the dining room had shown her their appointment certificates.

 

[54.11]  When the police officers introduced themselves they asked where the bag was that had been brought there. Accused No 2 was asked specifically about Sgt Silinda and Captain Mashete, but did not react to this suggestion as to the identities of the persons who had introduced themselves to her.

 

[54.12]  Her response when Defence Defence Counsel reminded her of their evidence in Court, that they had asked her where the bag that contains firearms, she testified that they did not ask that question and she did not know that that bag contained firearms. She stated further that she would not   have kept the bag carrying firearms and reacted, “I wouldn’t have allowed him to bring those firearms in my house, why did he take those firearms away from his house?”

 

[54.13]  She had been in the passage and when asked about the bag she pointed out the room in which it had been placed. A small bedroom next to her bedroom. She opened the door and said, “here is the bag”, lying next to the bed on the floor and added, where Executive put it.

 

[54.14]  Her evidence was further that after she had pointed out the bag to them, they had asked her what was in the bag she had replied, “I don’t know”. She stated that at the end of the passage there is a bench when she went and sat down on it.

 

[54.15]  After they had opened the bag, they called her asked her to come and see what was inside the bag. She then approached and peeped inside the bag and asked, “what is this?” and they said, “firearms”. She saw in her words, “black pipes inside the bag because the bag was opened”.

 

[54.16]  A female police officer in uniform called her and asked how it had happened that the bag was there and how the bag had been brought there.   Accused No 2 took out her phone and I showed her the call log showing that she had received a call at eight o’clock from a family friend, who was like an uncle to her children.

 

[54.17]  Accused no 2 testified that this police lady told her to phone him, which she did. She phoned Executive, placed the phone on speaker and he said that he would be there within twenty minutes. He arrived there twenty minutes later.

 

[54.18]  Counsel for the Defence asked her to comment on the evidence for the State that Sgt Silinda, Captain Mashete, Cst Mbobo and Accused No 3 had entered her house. Accused No 2 answered that Accused No 3 did not enter her house and that she had only seen him at the police station.

 

[54.19]  Counsel for the Defence further asked her to comment on  the evidence for the State that Sgt Silinda, Captain Mashete further testified that they got into that room with accused 3 and then they asked him, Accused No 3, if that was his bag and they said accused 3 said only if they can open the bag, so he can see the contents of the bag that is when he can confirm. Accused No 2 answered to this that Accused No 3 did not enter my house at all.

 

[54.20]  Executive and he said he will come after 20 minutes, and he arrived.  When he arrived, they were sitting at the dining room she was sitting on a sofa and then Executive entered the room and introduced himself. He stood next to a room divider. He greeted and said that the bag belonged to him and said that she, Accused No 2, calling her the Granny, knows nothing about the bag.

 

[54.21]  Then she and Executive were told that they were arrested. The police took them to their vehicle and they went to Rietgat police station. She did not know who had brought the police to her home.

 

[54.22]  Defence Counsel asked her about Warrant Officer Fraschia from the Local Criminal Records Centre, Pretoria North, who testified that he came to her house and took pictures and asked her where she was when the pictures were taken by Fraschia. She testified that there were three white officers and they went to the bedroom, to take photos, because we left at around eight, if she was not mistaken.

 

[54.23]  When the pictures were taken she was in the house with many police officers. She disputed the fact that when they were waiting for the LRC people to arrive and Silinda’s evidence had been that he had locked the room with the key that he had held, stating that the bedroom did not have a key and could not be locked.

 

[54.24]  Defence Counsel dealt with Silinda’s further evidence that it was her, accused 3, his colleague Mbobo and Captain Mashete in the house, whilst waiting for the officer who took pictures in your house. Her comment was that, “No, there were many police officers, some they were outside.”

 

[54.25]  Her evidence was that she could not recall at the time the photographs were taken whether Executive was in the dining room, or whether he was not yet in the house. She could not recall at what time he arrived, but stated that as regards the people who took the photographs

 

“ When they arrived, there were three White officers and then they went to the bedroom, to take photos because we left at around eight, we left at around eight, if I am not mistaken.”

 

[54.26]  As to what happened at Rietgat police station on the evening of 6 July 2018, she testified that when they arrived there she alighted from the vehicle and they went to a charge office. Her evidence was that she saw three gentlemen, one being Accused No 3 and one short, chubby gentleman who was then unknown to her. It is noted that it later transpired from cross-examination by State Counsel that this person was a certain Jabu. When she entered the police station they were being assaulted by police officers.

 

 

[54.27]      Her evidence was further that she was taken to what she referred to as a transfer cell and was thereafter taken to Soshanguve police station by police officers in a van.

 

[54.28]      She testified further when asked by Defence Counsel if she remembers Silinda and Machete, she stated that she saw them for the first time at Court in Pretoria North. Defence Counsel asked her if she had seen Silinda and Machete on 6 July 2018 and her reply was that there were many people and she could only remember a white man and a female police officer.

 

[54.29]       At Soshanguve police station she stated that she had been detained there. On the Saturday she was taken to a room and questioned as to her personal details and that was all.

 

[54.30]  The Court takes note of the fact that the cell register Exhibit “Y1” indicates that only Accused No 2, Accused No 3 and Executive were detained in the cells at Soshanguve at 20:30 on 6 July 2018 , confirmed by the Defence witness Sgt David Hlongwane who also made reference to the cell register to confirm this. Jabu was not detained there that evening and the evidence was to the effect that Jabu was arrested on 7 July 2018. There is no entry as regards Jafta.

 

[54.31]      She was taken back to the cells, called again and taken in a car to an area, which she could not recall where this was, but it was a building where they went up in a lift. She was with a lady who told her she was Jabu’s wife. There were six of them and they were there for the whole day, whereafter they were taken back to Soshanguve.

 

[54.32]      In this place she stated three persons were assaulted there, except for herself, Jabu’s wife and Executive.

 

[54.33]      She was questioned by a female police officer and fingerprints were taken. When asked why she was there, at her age she testified that she had told her what had happened.

 

[54.34]  She testified that someone approached her with a document at her house when she was taken and told her to sign it. Exhibit “F” adduced to by Silinda in his evidence is a Form 14A, Notice of Rights in terms of the Constitution, signed by Accused No 2 at 20.21 on 6 July 2018. This was signed at Soshanguve.

 

[54.35]      She was asked by Defence Counsel about the evidence given by Silinda and Machete that she was Scarface’s mother to which she replied that she did not know the name and did not have a child by the name of Scarface.

 

[54.36]      Her evidence was that she had not known Accused No 3 before 6 July 2018 and met him for the first time at Rietgat police station.

 

[54.37]      He did not testify as to ever having seen a short chubby man (whom she was later told was Jabu)  with the police at the house.

 

Cross-examination by State Counsel of Accused No 2.

 

[54.38]      Only the relevant and more pertinent aspects are dealt with below.

 

[54.39]      She was cross-examined as to what she saw in the bag, whether she had seen police with firearms on television and regarding her evidence that she had seen the round parts, the black pipes in the bag.

 

[54.40]      She contradicted herself initially stating that she saw the firearms later as one policeman pulled one out and said here is a firearm and then when pressed on the issue stated that they never took them out of the bag. Her evidence was:

 

“Yes after peeping in the bag, one police official took out one firearm and said:  here is the firearm, holding the firearm”

 

And then the following was put to her:

 

          “You must recall Ms Lekgotoane just before I put my question, I will rephrase, recall that inotially you told the court that a policeman took out a firearm when you saw the firearm being pulled a firearm from the bag and said:  this is a firearm.

Right, your second version was a tall policeman now, showed you a firearm he was carrying, do you recall that?”

And she then stated that:

“They were never taken out of the bag.   He showed me from the beginning.”

and

“They opened the bag.   They said:  what is inside the bag, I said:  I do not know.   They opened, they said:  come look.   I stood up and I went to peep and I said:  how, are these the pipes?   They said:  no it is not a pipe.   One of them said:  it is a firearm, waving his hand.

 

[54.41]       She agreed that it was never put to either Silinda or Machete in cross-examination that the police made her look in the bag. She stated that she did not know why Defence Counsel never put it to them that a tall policeman had shown her a firearm that he was carrying, as she had stated shortly before in her previous reply.  She said that she had told her legal representative about this, that there were many people in the house and one told her that one of them in uniform said there were firearms on the bag like the one he was carrying.

 

[54.42]      She however maintained under cross-examination that she never knew there were firearms in the bag and had not seen balaclavas or gloves in the bag either. She was in the dining room when after the police went into the bedroom.

 

[54.43]      She was asked why it was never put to Silinda and Machete that she had sat on a bench after she had shown the police the bag because she was trying to justify her version that she did not know that there were firearms in the bag to which she replied that she did not know that there were firearms inside the bag, to which she replied:

 

“They opened, I peeped and I thought they were pipes and then I went to sit on the bench.   And then with my eyes, I never or I am not used to seeing this kind of firearms or this kind of big firearms.”

 

[54.44]      Accused No 2 was shown photograph 18 in Exhibit “E” and she stated this is what the officer was showing her.

 

 

[54.45]      She was asked if she had seen balaclavas and gloves in the bag and replied that she had not seen them as she could only see what was lying on top when she peeped in the bag.

 

[54.46]      State Counsel asked her whether she recalled Silinda and Machete tetstifying that when they arrived at her home “where is the bag containing firearms brought by Executive to you”. She replied that this was not true and that she did not know if they had testified in that manner, but it did not happen that way.

 

[54.47]  She was questioned as to why when Silnda and Machete asked her where the bag was she had replied, “what bag?” and knowing that Executive had brought it at 08:00 that morning she had not immediately said that the bag was there. Her reply was  that they threated her and that was why she had asked which bag. There were many of them and she was ill and she had not been expecting anybody.  She added that they had asked what is contained inside and she had told them that she did not know.

 

[54.48]  State Counsel challenged her as the time of arrival of the police and she replied that she had got the time from the police lady who questioned her putting it to her that this was new evidence.   Her reply was that this was what she had been told.

 

[54.49]  Cross-examination regarding where the bag was under the bed according to Silinda or placed next to the bed by Executive according to Accused No 2 did not go far, neither did the aspect raised that Accused No 2 could have seen what was going on in the bedroom in question when the bag was being opened by one of the two policemen who had entered the room, which she saw happening. Accused No 2 said she could not say whether these were Silinda and Machete.

 

[54.50]   State Counsel asked her to recall Silinda’s evidence that he had opened the bag for Accused No 3 to confirm whether the firearms in the bag were his to which she replied that he did not enter her house. State Counsel when he put it to her that Accused No 2 was trying to protect Accused No 3, she stated that if she had seen him, she would have told the Court that he was there.

 

[54.51]  As regards Executive she stated that he lived three houses away from her house. She had known him since 1995 when she moved to her home. When he brought the bag she did not ask him where he was coming from, from home or from somewhere else.

 

[54.52]  She did not find it strange that he was bringing the bag to her house and not to his and took it that he was not going far, going to buy cigarettes and would be coming back “just now”. She never asked as it was not strange as he was a person whom she was used to and always assists her.

 

[54.53]   It was out to her that the policewoman and a white policeman asked her where the firearms came from and thereafter, they made her call Executive. Her reply was:

 

“They did not said firearm, they said where does the bag comes from.  Then I took out my phone and showed them the call log and they said yes, we can see that you have received a call.”

 

[54.54]  She stated that it was not the white policeman but the police lady who asked her about the bag and made her call Executive, which she did and placed him on speaker.

 

[54.55]  She was asked whether she saw Silinda and Machete when they testified in Court and she answered that this was the first time to see them. It was put to her that Silinda and Machete had informed her of her Constitutional rights to which she replied that she was never informed of her Constitutional rights, she was not told anything.

 

[54.56]  When asked by State Counsel as to who had arrested her, she replied that it was the policewoman. When it was put to her that Selinda and Mchetet did not tell the truth when they testified that Silinda arrested her, Executive and Accused No 3, her answer was:

 

“A person who was in the house it was Executive and I do not know whom he travelled with to the police station, but this one the witnesses looking at the accused sitting in the dock, we found them (sic) at the police station.”

 

[54.57]   It was put to her that when Silinda testified it was not put to him that he had not arrested her. She stated that she had told her counsel this and agreed that her Counsel had asked on numerous occasions to take instructions from her during the trial.

 

[54.58]  When cross-examined further on what she heard Executive say to the police she replied that he had brought the bag and did not hear other things that he had said. She did not hear him say anything about forearms he just said that the bag was his. After further cross-examination she adapted this reply by saying that she had heard him say that the Granny knows nothing about this bag.

 

[54.59]  She stated that she was shocked that he had brought a bag with firearms inside was angry as to why he had brought those things to her  bring those things to her and why he did not come and fetch those things. She was speechless and did not confront him. It was put to her by State Counsel, to the following effect,  that she did not confront him because she knew what was inside the bag, she knew there were firearms in the bag and she had assisted him in hiding them away, risking arrest. Her reply was that that was not true.

 

[54.60]  She was cross-examined as to whether she met Executive at the Rietgat police station and stated that she had. She and Executive arrived later and she found Accused No 3 there.

 

[54.61]  Accused No 3, a tall and light-complexioned male, whom she had not mentioned before, and a short chubby person, whom she learnt was Jabu, were already there, they had been arrested and were being assaulted by the police. They were assaulted and fell down, lay on the ground and were trampled on and kicked all over their bodies.

 

[54.62]  As regards Silinda and Machete being there she stated that she could not remember, as she had an eye problem. It is significant that she had testified earlier that she had seen them for the first time at court. She did not see injuries on them because she was taken away. She saw Accused No 3 the next day and he had injuries to his wrists and dragging pulling his leg to show that he was injured.

 

[54.63]  It was put to her that it was never put to any of the State witnesses that accused 3 could not walk as a result of the assault that was meted out to him, to which she replied that she did not know why this was not put to them, whereupon State Counsel put it to her that she was fabricating another story.

 

[54.64]  She was then cross-examined on being taken on the Saturday 7 July 2018 to a building, which could have been in Pretoria, as it was a tall building, together with the other suspects, Jabu’s wife, Accused Number 3, Jabu and the tall light-complexioned male and Jabu. She could not say who took them there.

 

[54.65]  She was taken there at 8 o’clock in the morning and transported back and she arrived back at about 10 pm or after that. She and Jabu’s wife sat in a room and others were taken to a separate room and they could not see what was happening that separate room. She did not see them being assaulted, she heard screams from that room where they were, where she could not see.

 

[54.66]  When accused 3 came back to the room where we were that is where he was pulling his right leg. Jabu was walking properly.  The one who was in pain was the tall one light-complexioned male.

 

[54.67]  She stated when it was put to her  by State Counsel that she did not tell the investigating officer that Accused No 3 was never at your place, that Executive was the only person who knew something about the bag that had contained firearms found at her place, her reply was that she never discussed this matter with anyone since having  been arrested.[6]

 

[54.68]  The Court pointed out that Accused No 2’s plea explanation was not evidence, but merely had probative value and if there were aspects thereof which Counsel may bring  to the Court’s attention, in respect whereof Accused No 2 ought to be given the opportunity to clarify these aspects. Nothing of material importance came to light from questions levelled at certain aspects of the plea explanation by State Counsel. Defence Counsel had no questions thereanent.

 

[54.69]  There was no re-examination.

 

[55]       Manoko Stanford Dihangoane, Accused No 3, a male aged 29 years, who at all relevant times resided at house 1932, Extension 10, Soshanguve testified in his own in his own defence. His evidence was a denial that he had ever been involved in the cash in transit heist in casu, and his version of the events that led to his arrest differed substantially from that proffered by the State witnesses, more especially he stated that the evidence given by Silinda, Machete and Mankayi was false.

 

[56]       He also testified about severe assaults perpetrated upon him.

 

[57]       He alleged what amounted to a conspiracy on the part of the State witnesses, in particular Silinda, Machete and Mankayi to falsely implicate him.

 

[58]       He moreover alleged that Makayi had falsified his interview statement, had drafted it in his absence in Exhibit “N” and had furthermore forged his signature and initialks on the document, which he had only seen during consultations with his counsel in prison. 

 

[59]       As regards the DNA evidence he did not deny the presence of his DNA on one of the gloves found in the bag containing the firearms and other exhibits raising the defence that he wears gloves when he rides his bike and had lent gloves to a certain Temba.

 

[60]       As regards traces of his DNA on one of the balaclavas found in the same bag his version was that this had also been in a kitbag with the gloves lent to Temba, suggesting it was possibly his, then stated it was not his and contended that the balaclava been contaminated from contact with the glove on which his DNA was found.

 

[61]       His evidence was that he had shown his injuries sustained in the assaults upon him by the police to a magistrate from the Pretoria North Magistrate’s Court, Ms Rapulana and had lifted up his T-shirt to show her the bruises on his back.

 

[62]       In addition his evidence was that when he had to be detained in the cells at Soshanguve he had informed Sergeant Accused No 3, who was in charge of the police cells on 6 July 2018 that he had been assaulted and that Hlongwana refused to receive him in the cells and informed Silinda accordingly that he had to take  Accused No 3  to a doctor or hospital to see to his injuries.

 

[63]       Accused No 3’s wife, Tsakani Lina Mdlele, was called as a defence witness with a view to corroborating his version that before midnight on 5 July 2018 police had entered their home and police wearing balaclavas assaulted Accused No 3 during the course of the night and early morning, whereafter he was taken away by the police.

 

[64]       The magistrate Ms Rapulana was called to testify in his defence and handed up the court record Exhibit “Z” with her recorded notes as to injuries at his appearance before her on 9 July 2018. Her evidence is dealt with infra.

 

[65]       The material aspects of Accused No 3’s evidence on the aspects set out supra were as follows

 

[65.1]  On 5 July at was around 23h00 up to or before 12 o’clock he was at home sleeping in bed, at Extension 10, Soshanguve. He awoke to when he heard people knocking around all the windows and instructed my wife to go and open because I was getting dressed. When his wife opened the security gate he was behind her.  She opened the security gate and went back into the house and he went outside

 

[65.2]  When he went outside he did not see anyone.  Then after a second, he saw police officials, wearing balaclavas.  Rifles were pointed at him and he was instructed to lie down and was trapped with their shoes. He was held on the ground and they stood on him with their boots.

 

[65.3]  He did not speak to them and they did not speak to him. They did not tell him who they were. Then a certain person appeared who was not wearing a balaclava and said, “it is confirmed” and he did not know what he meant.

 

[65.4]  They took him back into the house and pushed away a couch that was in the living room and a table to create a space. Then they asked him whether he knew why they were there and he told them that he did not know. They told him that they were there “because of the cash in transit and the rifles”.  He replied and said that he knew nothing about that. They made him lie down and tied him with cable ties. 

 

[65.5]  They searched the house and the cars. They found nothing and took the car keys. R18 000, two Diesel wristwatches and four military caps were stolen by them

 

[65.6]  They searched, then when they were done, they came back to him and said to him, now we are going to work, he did not understand what they meant. They placed a plastic bag around his face and sprayed pepper spray inside the plastic bag for about 10 minutes and then it was removed.

 

[65.7]   They told him that when he wanted to tell them the truth he had to indicate this to them by kicking his leg. They placed back the plastic bag back and then he said to them, “what truth do you want to know”. To which they replied the truth about his being involved in the cash in transit and the rifles.

 

[65.8]  They removed the plastic bag, fetched a blanket, wrapped him in it and placed a towel over his. One police officer fetched a bucket of water and this was poured on top of the towel that was over his face while he was pinned down to the floor by seven police officers, by his hands legs and chest telling him they wanted the truth. More water was poured on the towel over his face and he vomited.

 

[65.9]  After that he was taken to the bathroom and the bathtub was filled with water, they put him in it and proceeded to push his head under water several times. Took him out and asked him if he did not want to tell them the truth, put him back in again for about ten minutes and then took him out and put him in for a third time and he said he was drowning

 

[65.10]   He testified that his wife and child were in the house and Silinda, who had later taken off his balaclava, hit her with an open hand and accused her that she knew where the firearms were and if she knew what he had been doing.

 

[65.11]   He was asked who had done all of this and he said it was Silinda and Machete and others in the house that he did not know. He said there were about fifty to 110 police at his house, some inside and others outside. Some were wearing police uniforms and others military uniforms. There was a white policeman and a policewoman and Machete who were wearing civilian clothes.

 

[65.12]   They left the house at about 03:15 on 6 July 2018 and he was taken to Motla’s place, to Hammanskraal, and Mokapansta. At that stage Silinda and Machete had taken off their balaclavas and he was conversing with them. He was asked if he knew Jabu and where he stays. He said that he could take them to Jabu’s parents house and took them to Soutpan.

 

[65.13]   When asked by his counsel about Silinda having  given evidence that he, Accused No 3 had told Silinda that he had given his firearms to Executive he replied that he had told Silinda that he did not own any firearms and that Jabu had told Silinda that he, Jabu, gave Executive the firearms.

 

[65.14]   He further denied that Silinda and Machete had introduced themselves to him, showed him their appointment certificates and read him his Constitutional rights and testified that these people were no co-operative and were there for a fight. It is noteworthy that Exhibit “G” produced in Court and was acknowledged to have been signed by him and referred to by him during cross-examination.

 

[65.15]   He denied that he had sat outside with Machete and had a conversation as testified by Machete, saying that at no stage had they sat outside in the garden. He continued to state that the people were inside the house, that Machete was not called to come. His evidence was that Machete was already there and was the team leader, which was not put in cross-examination to Machete.

 

[65.16]   At Soutpan they arrived at Jabu’s house and his girlfriend’s house down the road for him. He was not there and they took his stepchild to the car, slapped him amd took the child with them to Block NN, surrounded the place, shot the dog , went into the estate and knocked at the door of the house where Jabu’s wife lived, she opened and they found Jabu inside. Accused No 3 stated that he was then fetched from the car and taken into the house. Jabu was cuffed with cable ties like Accused No 3.

 

[65.17]   Jabu denied that he had firearms and was told that he was lying whereupon plastic bags were place over both of their heads and sprayed with pepper spray. They filled bath with water, first placed Jabu in the tub and thereafter placed him in it. They hit them with a table which broke. Then Jabu was covered with a blanket, a towel was placed in his face and water poured with a bucket over the towel on his face. Jabu then stated “lets go, I will give you the firearms”.

 

[65.18]   They went back to the cars and drove to block 1A at Soshanguve which was Jafta’s place where he was located and taken. They went back to block NN, assaulted Jafta and asked him for the firearms which he denied having. A plastic bag was placed over his head and pepper spray sprayed inside.

 

[65.19]   They did the same to Jabu’s wife with a plastic bag and pepper spray, according to Accused No 3’s testimony and asked her why she was staying with a thug when she is a Metro Policewoman. When she was told that they were looking for a Quantum vehicle that Jabu had bought two weeks earlier she stated that she would take them to where the vehicle was. She took them to Motla at Jabu’s sister’s place and where the Quantum was found in the garage, The vehicle was searched and a rifle found inside in a box.

 

[65.20]   They were taken back to the police vehicles and had to sit in them while waiting for a forensic team, who arrived and took photographs and fingerprints. Another team from Limpopo also arrived there.

 

[65.21]   From there Accused no 3 testified that he, Jabu and Jafta were taken to Wonderpark Estate. The police with Jabu and Jafta alighted from the vehicle and went up some stairs to a unit. Accused No 3 waited in the car. He was later taken into the flat and found two other people in the flat apart from the police, one was called Calvin Molete, also later referred to as Boza in the evidence, whom Accused No 3 stated he did not know. It can be noted that this person was one of the accused who appeared before Ms Rapulana in Pretoria North court on 9 July 2018. Silnda, Machete and a policeman called Makula were in the flat. A couch in the flat was cut open and what was referred to as a “bomb or fuse” were found inside the couch.

 

[65.22]   Evidence of further assaults by the police followed.

 

[65.23]   The police had a discussion on the phone with a certain General and told Jafta and Accused No 3 that they were taking Jabu to the Themba police station to charge him for possession of a rifle at Motla. Calvin Molete was told that he would be taken to Acacia police station for possession of explosives and a bomb.

 

[65.24]   The police told Accused No 3 and Jafta that they were going to release them and asked if they had money for a taxi. Jabu objected and said that the police could not release Accused No 3 and Jafta as there were forearms hidden at block GG. Accused no 3 testified that the police asked where these were and Jafta said they were at Executive’s house. The police assaulted Jabu for bringing them to Wonderpark and now they were hearing that the firearms are at block GG. According to Accused No 3’s testimony Jabu volunteered to take the police to block GG.

 

[65.25]   Calvin Molete was left at Wonderpark with other police officers while he, Jabu and Jafta left in a Vito vehicle with Silinda, Machete, Makula and others unknown to him and travelled to section GG to a house, which Accused No 3 testified he later learnt was Executive’s place. 

 

[65.26]   According to Accused Ni 3’s testimony, when they arrived at that house the police alighted and Silinda told a lady who had come outside that they were looking for Executive. Accused No 3 was in the Vito parked at the gate, looking. Silinda assaulted her with an open hand before she even said anything. She stated that Executive had gone to work.

 

[65.27]   Accused No 3 stated that this lady was told to call executive. He said that he and Jafta were taken out of the car and the lady said she did not know them. A child, about 13 years old, had just arrived from school.

 

[65.28]   Accused No 3 then said that the police then searched the yard, inside the house and everywhere and found nothing. Police with balaclavas slapped the child with open hands. The child stated that he did not see any firearms and that he had seen his father that morning carrying a bag to Magogo’s house on his way to taking him, the child to school before he went to work. The child pointed out Magogo’s house which Accused No 3 said he learnt later was Accused No 2’s house.

 

[65.29]   Accused No 3 then testified that Silinda, Machete, Makula and others wearing balaclavas went to Magogo’s house. They drove there and jumped the wall. He remained in the Vito vehicle with police wearing balaclavas. There were many policemen estimated at about 200. From there he stated he did not know what happened. Some of the police went inside and others stayed outside.

 

[65.30]    Accused No 3 stated that at Rietgat police station he had heard that the police had found firearms in Accused No 2’s house. When asked by his counsel to comment on Silinda and Machete’s evidence that they had given evidence that he, Accused No 3, had pointed out the firearms and had said they belonged to him, his reply was “How? I did not enter”. He had only heard at Rietgat that they had encountered firearms at her house.

 

[65.31]   Accused No 3 then proceeded to testify on an assault at Rietgat. They were told to stand in a queue. It was himself, Executive, Accused No 2, Calvin (Boza) Molete, Jabu and Jafta. He did not know where Calvin had come from, he last saw him at Wonderpark Estate.

 

[65.32]   Accused No 3 said that he, Jabu and Jafta were assaulted because they were told that firearms were found in Accused No 2’s house and they said we knew about the rifles. At that stage he only knew about the firearm recovered at Motla at Jabu’s place.

 

[65.33]   Accused No 3 then testified that they were taken to Soshanguve police station. His evidence was that Silinda and Machete took them there and they wore balaclavas. When they got to Soshanguve police station Machete left.

 

[65.34]   He was with Jabu in the Vito vehicle. When they got there Accused No 2 and Executive were also there. They were taken to the reception area at the cells to be detained. He testified that he did not know where Jabu was, he was somewhere outside the police building in the yard and he did not know what happened to Jafta. It is noteworthy that the cell register indicated that Jabu was detained the next day 7 July 2018. His evidence was that there was a problem regarding his detention as it was stated there by the police that he could not be received into the cells because he was injured. It was late in the evening on 6 July 2018. The police at reception called the station commander because of the injuries. The station commander signed them into the cells for the night.

 

[65.35]   His version of the events at the cells was not supported when Sgt David Hlongwana, a defence witness, testified. He and the rest of the suspects, on his version were detained.

 

[65.36]   Accused No 3 then testified that he was fetched from his cell and taken by police wearing balaclavas in a vehicle with a Limpopo registration to Winterveld, which is not far from Soshanguve, to the home of a lady called Lindiwe. They kicked down doors and demanded money alleged to have been hidden in the house. They question three ladies, one of whom was elderly, and assaulted them asking for money allegedly left there by Accused No 3. He stated that he knew nothing about any information the police may have received about his allegedly dropping off money there. He was then taken back to the cells at Soshanguve and he slept.

 

[65.37]   Accused No 3 then testified about the events on Saturday 7 July 2018 when the Hawks, Chauke, Mashau, Mtinmunya and others, including aa white colonel arrived at Soshanguve. He was told by the Colonel that he was being charged with possession of the rifles found at Accused No 2’s house. Fingerprints were taken as well as swabs.

 

[65.38]   They were all booked out from Soshanguve police station and taken to police offices in Pretoria Central and Accused No 3 testified about assaults perpetrated upon him, where he said that Mashau covered his face with a plastic bag and Mankayi held his legs there. This alleged assault was never put to Mankayi in cross-examination by defence counsel when he gave evidence in Court.

 

[65.39]   He testified further that video footage of cash in transit robberies were shown to him by Mashau ostensibly to identify participants depicted. He suggested to Accused No 3 that one of the people visible on video of a cash in transit robbery was Jabu. He further asked Accused No 3 when he had participated in CIT robberies, which he denied ever having done. He was told that he must make a statement which he declined to do without a lawyer.

 

[65.40]   He was shown a long list of names and photographs of suspects in cash in transit robberies,  whilst he was being interrogated by the police at these offices, and was asked if he could identify any of the people listed, or appearing on photographs which he initially said he could not do. However when he was asked if he knew one of the suspects involved in cash in transit robberies, someone called Themba and shown his photograph and he then stated that he knew him from a bike social club and when asked if Themba had a rifle Accused No 3 said “no”.

 

[65.41]   Themba appears to have been the person Accused No 3 claimed to have lent his gloves as would appear infra and the name Themba featured in his evidence which he claimed was one of the people who together with Jabu had taken the bag of firearms to Executive.

 

[65.42]    Accused No 3 did not deal with the interview conducted with him by Mankayi, but states that he was simply transferred to Diepkloof. He was informed by a police officer there that he was there to do pointings out and to make a confession. Jabu was there too and said no, he was the one who wanted to make a confession. Accused No 3 said he was given a phone by that police officer, phoned counsel who told him not to do anything so he did not make a statement.

 

[65.43]   His version was further that at about 09:00 at Diepsloot,  LRC people came and wanted to know why he was injured and that they had been told that he wanted to make a confession but he  had a right to refuse and because he was visibly injured they were not going to conduct anything and left.

 

[65.44]   Accused No 3 testified that Mankayi arrived and tried to persuade him to make a confession and said he would give him bail if he made a confession. Accused No 3 told him that he was not going to make a confession, so Mankayi said he was going to deny him bail.  He and Jabu were driven back to Soshanguve with Jabu

 

[65.45]   In his evidence in chief he did not deal with the interview that Mankayi held with him at Soshanguve police station at 16:33 on 7 July 2018 which was recorded in Exhibit “N”, that he claimed was never seen by him until consultations  with his Defence Counsel at the prison.

 

[65.46]   Defence Counsel was given an indulgence to ask Accused No 3 additional questions regarding his DNA on the glove in the bag that witness Van Dyk testified about. His evidence was that he had attended a certain Sipho’s funeral at Winterveld as a member of a social club. Sipho had been in a bike accident. When they attend they ride on their super bikes. If he remembers correctly Themba did not have gloves so he borrowed gloves from him. He handed Themba a small kit bag with gloves and a bandana inside. This funeral was somewhere in May 2018 when he last saw him. He last heard of him when the police were discussing at the Pretoria Moot police cells whether they should arrest Themba because Executive told them that Themba and Jabu had brought the bag which contained the weapons to him.

 

[65.47]   Accused No 3 testified further that on 9 July 2018 when he appeared in the Pretoria North court the magistrate called him forward so that she could see his injuries. She looked at his wrists which were bleeding and also pulled up his T-shirt to show her the bruises on his back.

 

Cross-examination by State Counsel of Accused No 3

 

[65.48]   As regards cross-examination by State Counsel not all the averred inconsistencies put by State Counsel to Accused No 3 regarding his version, instructions given in conflict with his evidence garnered under cross-examination by the State,  or instruction withheld from his Defence Counsel will not be summarised below, only the material deviations appear below.

 

[65.49]   As regards the assault on him in his house Accused No 3 stated that after searching his property and the cars the police did not spray pepper spray, but just put a bag over his head and held it tightly for several minutes. Accused No 3 stated that the pepper spray sprayed into a bag over his head happened in town in the presence of Mankayi, which he agreed was not put to Mankayi. He denied that he had said that the spraying of pepper spray into the bag happened at his house, although this appears from his evidence in chief.

 

[65.50]   It was also alleged by Accused No 3 for the first time during cross-examination that he was  struck with the back of a rifle on his waist, after he had been tubed with a plastic bag, had his faced wrapped in a towel, and water poured on him.

 

[65.51]   He was asked who had placed the towel over his face while he was in the dining room and he answered that it was Silinda after stating a question later that he did not see who had placed it on his face. He changed his answer saying that he did not see who brought the towel, but saw  it was SIlinda who had placed it on his face. In addition in his evidence in chief he had that all the people who were assaulting him in the house were wearing balaclavas and that it was only after they left the house, himself included and while going to Motla’s place that Silinda and Machete took off their balaclavas.

 

[65.52]   He could not explain why it was not put to Silinda that he had placed a towel over his face and agreed that this was the first time this allegation was surfacing in the trial.

 

[65.53]   He was questioned as to where Machete was and he answered, he was the leader, he was there and was giving instructions such as, ”assault him, beat him up until he tells us about the firearms”. Accused No 3 did not know why this was not put to Machete.

 

[65.54]   He was cross-examined on the glove aspect and was asked why the whole version of the lending of the gloves to Themba was not put to the State witnesses and it was put that it was a fabrication. This became evident from the following answers under cross-examination infra.

 

[65.55]   He had did not initially mention at any stage that a balaclava was in the kitbag, only a bandana.  This avenue of examination is linked to Van Dyk’s DNA evidence in respect of the glove, and also with regard to one of the balaclavas in the bag, both of which had Accused No 3’s DNA  having his DNA inside them. Accused No 3 vacillated on this aspect and adapted his evidence stating that the kitbag he had lent to Temba had also had a balaclava in it, despite only mentioning a bandana in his evidence in chief to try to explain the presence of his DNA in the balaclava, in other words that the balaclava found in the bag at Accused No 2’s house must have been the one he lent to Temba.

 

[65.56]   The next day, during cross-examination, State Counsel invited him to have a good look at the two balaclavas depicted in photograph 9 in Exhibit “E”. He looked at the photograph and he adapted his evidence once again, stating that these balaclavas were not his at all, as neither of them had the K-Way brand label on them and he only wears K-Way gear. His contention was that his own DNA on the glove must have contaminated the balaclava in the bag found at Accused No 2’s house.

 

[65.57]   When State Counsel confronted him with Van Dyk’s uncontested evidence, that his DNA was found inside the glove and inside the balaclava. His reply was that they can be worn inside out. It was further put to him that Van Dyk had not been confronted with the fact that he had lent the balaclava to Themba. His reply was that he did not want to disrupt the proceedings, but notified his counsel after the Court adjourned there was a balaclava in the kitbag he lent Themba.

 

[65.58]   State Counsel also confronted him with the fact that Mankayi did not know anything about the fact that Executive had told him that it was Themba who had brought the bag to him, Accused No 3’s answer was that the police would tell lies to defend and protect themselves.

 

[65.59]   State Counsel also asked him about his evidence that he had never seen the bag that was taken to Accused No 2 and his reply was that he had only seen the picture of the bag in the photograph album when he consulted with his counsel.

 

[65.60]      State Counsel then traversed the Statement Regarding Interview with suspect Exhibit “N” and what was put to Makanyi by Defence Counsel[7]:

 

          “…when you interviewed the accused, accused 3 you just told him to sign on the bottom part, you did not read each and everything that was, each and every column to the accused when you interviewed him.”

 

[65.61]   State Counsel put it to Accused No 3 that he had made a statement to Mankayi which he denied. Defence Counsel objected that this was an interview, although page 6 of Exhibit “N” to which the State was referring, which was read out by State Counsel to the Accused in Court bears the heading “Statement by Suspect”.

 

[65.62]   Accused No 3 after this was read out stated that he had never made a statement as he (Mankayi) was writing on his own, he did not tell him anything, he never read it back to him “we were intimidated and assaulted”.

 

[65.63]   The appearance was created that he was there when the interview was conducted, but not participating of the proceedings, however he made it clear that he was not present when Mankayi wrote it out. The initials in the margins on each page were not his, he did not “write” that and the signatures on each page were not his. Mankayi forged his initials and signature. This was never put to Mankayi in those terms.

 

[65.64]   He went further to state that he had instructed his counsel at the prison when he had consultations with him that the police officer wrote it by himself and forged his signature. This was the first time that he had seen the document during those consultations.

 

[65.65]   He agreed that his Counsel had handed in the document as an Exhibit who had gone through the document with him. He added that it was apparent to him then that Mankayi had stopped him from making a confession and asked, “why did he stop me”.

 

[65.66]   State Counsel put it to him that why would huis counsel introduce this document Exhibit “N” into evidence in Court if he had been told by Accused No 3 that Mankayi had written up the document in Accused No 3’s absence and moreover had forged his signature and why this was not put to Mankayi in cross-examination were forged why his counsel would do something like that. Furthermore this aspect was not put to Mankayi that he forged the signatures. His reply was that he had told his counsel about this.

 

[65.67]   During cross-examination by State Counsel Exhibit “G” the Notice in terms of the Constitution of Rights, a prescribed SAPS 14A form, was handed to him in the witness stand. He examined it and pointed out that the signature on this notice was his and differed from the signature on the interview document, Exhibit “N”. which signature[8] he maintained was forged.

 

[65.68]  As regards the State witnesses’ evidence as to explanation of Constitutional rights to Accused No 3, and since the Notice in terms of the Constitution of Rights was raised in paragraph 57 of defence Counsel’s Heads on the Merits, where he takes issue with the explanation in respect   of Machete’s  and Silinda’s evidence in this regard, on his own admission under cross-examination Exhibit “G” shows acknowledgment of having been informed of his rights.

 

[65.69]   Mankayi also gave evidence that he had explained Accused No 3’s rights on several occasions and did so once again at Diepsloot police station. Moreover he testified he gave  Accused No 3 his phone and was afforded him the opportunity to telephone his legal representative Accused No 3  in fact acted in accordance with his Constitutional rights which he explained to him,  consulted a legal representative and declined to make any further statements.

 

[65.70]   He agreed when asked by the Court that when he wanted to give instructions to his counsel he would raise his hand and he would come and take instructions.

 

[65.71]   State Counsel asked him whether he was saying that Mankayi intended implicating him falsely to which he answered “Yes, he is a police officer”, When asked if that was the position why did Mankayi not falsely implicate and write down what he would have liked to see in the document, yet stopped him from saying anything else and therefore did not implicate him, or “put him in trouble”, in Accused No 3’s words, to which Accused No 3 replied that he did not know why he did not write anything.

 

[65.72]   State Counsel referred Accused No 3 to the section in Exhibit “N” which dealt with recording of injuries and he said that he did not tell Mankayi what he wrote there. He told Mankayi in Pretoria, undressed and showed Mankayi his injuries which he maintained was before Mankyi wrote up the interview document supra.

 

[65.73]   He was cross-examined on his evidence that he was refused entry to the cells at Soshanguve. He said he, Accused No 2, Executive, Jabu, Calvin, Jabu’s wife were all detained in the cells, everyone had injuries. The State showed him entries from the cell register, that only three of them were detained, himself, Accused No 2 and Executive. It was put further to him that Calvin was only detained on the next day, 7 July 2018. He replied that that was all lies the policeman at the cells recorded his own story.

 

[66]       Tsakani Lina Mdlele, Accused No 3’s wife, 29 years’ old, testified to the averred course of events on the night of 5 July 2018 which ran into the morning of 6 July 2018.

 

[66.1]      Her evidence was that she was awoken by a light showing through the bedroom window and heard souns and movement and thought there were people coming to steal. She woke up Accused No 3 and while talking to him she heard a knock on the door. She was left behind when Accused No 3 went to the door where the knock had come from. She was left behind and started dressing.

 

[66.2]      Her account was that while she was dressing was dressing she heard people say they were police officers. She followed Accused No 3 and found him on the ground just outside in front of the door and he was pinned down. A white officer in uniform appeared. She could see this from the kitchen as the house was open plan.

 

[66.3]      She saw something like a plank used to beat Accused No 3 and while she was trying to see, the white man said she should attend to her child who was crying. When she came back people with balacalvas were entering the house with Accused No 3 and went to the dining room, One of them said “today you are going to give us the firearms”.

 

[66.4]      One of them took out a plastic bag and they “covered him” with the plastic bag. At that stage the white policeman in uniform, a policewoman and another policemantook her into the child’s bedroom. She heard Accused No 3 screaming, and heard a person pouring water and going back and forth to the bathroom, She did nit know what they were doing with the water but afterwards there was water all over the house.

 

[66.5]      She was questioned in English with the policewoman interpreting, in the bedroom, and asked who Jabu and other persons whose names she had forgotten were, asked how they were “surviving”, and where the firearms were kept in the house and where Accused No 3 worked. She did not answer questions when she did not know the answers. They asked her a number of questions and threatened to assault her. She could not answer the questions about Jabu and the whereabouts of firearms.

 

[66.6]      They did not find anything in the house after searching everywhere, ceiling included, and asked for phones which they were given. They looked at what was on the phones.

 

[66.7]      She heard Accused No 3 screaming in the dining room and was told by the policewoman not to peep.

 

[66.8]      They went outside to the cars, searched them and found nothing.

 

[66.9]      After they came back from the cars Accused no 3 was told to put on his shoes. She gave him dry clothes and she helped him find shoes in the bedroom. After he dressed, the police asked her to unlock the gate outside for them to move in and out. They were told to put on warm clothes as they were going to go with the police. The incident carried on for three or four hours.

 

[66.10]   She was nine months pregnant and her due date was imminent, so she was left behind with her neighbour and stood in the neighbour’s yard and watched them go, taking Accused No 3 with them. She saw many cars outside.

 

[66.11]   She only saw Accused No 3 some six months later.

 

Cross-examination by State Counsel

 

[66.12]   State Counsel’s cross-examination was thorough and concentrated on exposing inconsistencies in her evidence.

 

[66.13]   Her sequence of events differed from Accused No 3’s version that the police first searched the house and the cars and then carried out the alleged assault with the bag, towel and water in the dining room. Whilst she had the sequence the other way around.

 

[66.14]   She never testified that any of the policemen had slapped her, as Accused No 3 testified.

 

[66.15]   She did not mention that Accused No 3 was struck on his back with the back of a firearm.

 

[66.16]   Court asked her how many vehicles were in the garage. She stated that there were two, a small car that Accused No 3 had recently bought her and his car, a Polo GT.

 

[66.17]   The Court asked her their house renovations as mentioned in her evidence and she replied that Accused No 3 had been given a tender and had used that money for renovations.

 

[66.18]   When asked by the Court if Accused No 3 had any hobbies or belonged to any clubs she replied that he was in a club and they went to funerals.

 

[66.19]   She also replied to a question as to whether she had visited Accused No 3 at the prison, she said that after the birth of her baby she had visited him there on various occasions.

 

[67]       Magistrate Rapulana from the Pretoria North magistrate’s court then testified as a defence witness, called to confirm what she had recorded on 9 July 2018 at Accused No 3’s first appearance in court after his arrest. She was appointed as a magistrate in 1992 and had been at Pretoria North court for eight years. The purpose for calling her was to determine what she recorded as to injuries seen on Accused No 3 when she asked him to approach the bench.

 

[67.1]      She handed up a certified copy of the relevant court proceedings for 9 July 2018 introduced into evidence as Exhibit “Z”.

 

[67.2]       Mr Madira, Defence Counsel in the trial in casu appeared for Accused No 3, who was accused no 1, together with two others, Executive Letshoa and Calvin Molete.

 

[67.3]      Defence Counsel had told her in his address that Accused No 3 had bruises on his back caused by the arresting officer

 

[67.4]      She testified that she had told Accused No 3 to approach the bench in order to allow him to show her his injuries. She saw Accused No 3’s wrists that were bleeding.

 

[67.5]      She stated that if Accused had said that he was assaulted she would have recorded this.

 

[67.6]      She also tesifed under cross-examination that neither Mr Madira or the Accused had said that he was assaulted by the police by putting a plastic bag over his head, being placed in a bath to drown him, or that pepper spray was sprayed into the plastic bag to suffocate him and no mention was made of vomiting during the arrest, or that he was suffocated for ten minutes during the arrest.

 

[67.7]      When State Counsel asked the magistrate if Accused No 3 had lifted up his T-shirt to show her the bruises to his back when he approached the bench, she replied that she had  told him and his Counsel that she was not going to allow him to undress in her court.

 

[67.8]      She testified further that it was not said that Accused No 3 would have to go for surgery for the injuries to his back.

 

[67.9]      In addition when further cross-examined by the State she testified that the fact that the accused had injuries from cable ties or cuffs does not mean that he has been assaulted.

 

[67.10]   She did not see injuries to his face or swelling of his face. She said that she would have seen this

 

 

[68]    Sgt David Hlongwane, with eleven years’ experience at the time, testified for the defence. He was posted at the cells at Soshanguve on 6 July 2018 and reported there on duty at 18:00.

 

[68.1]      As regards Accused No 3 he testified that he looked tired and he had the lines of cuffs on his wrists. When he asked Accused No 3 why he looked so tired Accused No 3 told him that he had been assaulted by the people who had brought him in.

 

[68.2]      He confirmed the contents of Exhibits “Y1 to Y3”, extracts from the cell register showing the times that Accused No 2, Executive Letshoa and Accused No 3, two males and a female, were detained at 20:309 on 6 July 2018. They were the only three brought to the cells by Sgt Silinda.

 

[68.3]      Under cross-examination he said that nothing out of the ordinary had happened when these accused were brought in, they were detained correctly. They were dealt with like any other suspect.

 

[68.4]      He did not see any bruises open wounds and Accused No 3’s face was not swollen

 

[68.5]      State Counsel asked Hlongwane if he would have detained Accused No 3 if he had any other injuries other that the cuff marks that he saw on his wrists Accused No 3 told him that he was fine so he detained him in the cells.

 

[68.6]      Accused No 3 was booked out for investigation, but he did not recall when he was brought back. Because he was off duty when he was brought Back.  According to the entries in Exhibit “Y3” this was the next day.

 

[68.7]      He did not know of a person called Jabu whom it was alleged had been detained with Accused No 3 and the two others and if he was detained there this would have been reflected in Exhibit “Y1”. “Y3” for the date of 7 July 2018 referred to Calvin Molete. The cell register for 7 July 208 referred to a cell inspection by other officers and the register showed that none of the thirteen inmates in custody in the cells had any complaints.  

 

[68.8]      He was asked by State Counsel if Accused No 3, Jabu and Jafta had been assaulted right there at the police station he stated “never in my presence, I would have heard it.

 

[69]       Defence Counsel closed the case for the defence at this stage.

 

[70]       State and Defence Counsel submitted heads of argument and presented argument on the merits on 20 July 2020.

 

[71]       State Counsel conceded that as regards duplication of convictions, although section 83 of the Criminal Procedure Act 51 pf 1977 authorises the State to indict on as many charges justified by the facts in accordance with section 83 thereof.

 

[72]       In casu in applying the tests as to whether convictions on multiple charges would result is a duplication of convictions he conceded that  to convict on count 1 as well as count to of the indictment this would be a duplication and the same applied to counts 3 and 4. He avers that counts 14 and 16 refer to the same vehicle and would be  a duplication; but states that if there were convictions on counts 8-13 there would be no duplication. I agree.

 

[73]       The tests to be carried out are referred to in the following cases:

 

 See S v DlaminI 2012 (2) SACR 1 (SCA) where at page 7 the Honourable Court held that:

 

“[22] In my view it is clear that the 'single intent' — or in this case the single common intent — of the robbers involved the threat to take property from the three women, and the taking of their property, in 'one continuous transaction'. Furthermore, this was accomplished through a single threat of violence directed at the three women simultaneously. This evidence — the violent threat — which was necessary to establish each charge, involved proving the other two charges. So both tests in Maneli were satisfied.

[23]   However, even without the application of these tests to this case, to conclude that three offences were committed — when in substance only one was — would defy common sense and fairness. Moreover, it would contradict the recent approach of this court in Maneli.”

And in S v Maneli 2009 (1) SACR 509 (SCA) at 512 the Honourable Court held:

“[8] To determine whether there has been an improper duplication of     convictions the courts have formulated certain tests. However, these tests are not equally applicable in every case. One such test is to ask whether two or more acts were done with a single intent and constitute one continuous criminal transaction. Another is to ask whether the evidence necessary to establish one crime involves proving another crime. 2    In the present case, for the reasons stated above, it is probable that the theft of the money from the office and from the house by the use of violence to induce submission was done with a single intent and constituted one continuous criminal transaction.”

 

[74]       State Counsel conceded further that as regards Counts 5 to 16 that the Accused No 3 ought to be acquitted on all of these Counts, presumably including Accused No 2 also as she pleaded on these counts too. I do not agree with the basis for this concession and shall deal with this infra.

 

[75]       State Counsel however maintained that the evidence of Accused No 2 and 3 be rejected in respect of contravention of section 3 of the Firearms Control Act 60 of 2000 (Counts 1 and 2 combined), possession of the two assault rifles specified.

 

[76]       As well as rejected in respect of  contravention of section 90 of the Firearms Control Act 60 of 2000 (Counts 3 and 4 combined), possession of the ammunition specified.

 

[77]       Defence Counsel, briefly stated, submitted in his Heads of argument that both of the Accused be acquitted on all the offences 1 to 16. There was no evidence led to prove and their defence ought to be accepted as reasonably possibly true.

 

[78]       Defence Counsel was asked by the Court that in the event the Court finds Accused No 3’s evidence to be false and improbable, would the evidence adduced by the State, despite the State Counsel’s concession that he felt that there were shortcomings which precluded him from asking for convictions on counts 5 to 16.

 

[79]       Defence Counsel referred me to S v Mgedezi 1989 (1) 687 (A) 705 and an unreported decision of the Honourable Steyn J in the matter of Thokozani Thembinkosi Mhlongo v The State Case AR 170/14 a KZN decision dated 30 January 2015. I shall deal with Mgedezi infra, but at this stage I am of the view that the facts in the present case are distinguishable from those in the Mhlongo matter in that Accused No 3 did not point out anything, his admission did not emanate from a confession document and his alleged possession of the firearms, with which I shall deal below, was of a different nature to the linking of the Mhlongo to the murders in question. In casu we are dealing with ballistic evidence and DNA evidence and normal extra curial admissions and statement by the accused.

 

Main findings

 

[80]       I find that the ambush and assault carried out on the of the Fidelity Cash Solutions convoy, two escort vehicles and a cash truck, on 10 December 2017 was executed in a well-planned fashion, with precision, certain tasks and duties attributed to various member components of this assault squad of heavily armed robbers, some handling the shooting, some the incapacitation of the target vehicles, some involved in setting of explosives to blast the safe door off its mountings and a group to load the cannister of money stolen into and onto vehicles. The firearms ranged from AK 47s to other types of assault rifles, 9mm pistols and revolvers. At least nine firearms were fire and in the order of 45 spent cartridges were found at the scene and ballistically tested. Serious vehicular damage was caused, firearms stolen from the Fidelity guards, R641 790,00 stolen, as collateral damage the complainant in Count 12 and 16, a passing motorist had his car damaged when the escort bakkie collided with it and he was robbed of his firearm, ammunition and his police bullet proof jacket were stolen. The two deceased died as a result of being shot at the scene.

 

[81]       There were various formal admissions by the two Accused initially and during the trial and these are reflected in the summary of the evidence. These included the post-mortem reports, the chain as to the handling of the deceased, their identities, cause of death from gunshots, the photographs, plan, key thereto as well as the accompanying plan and key thereto as well as the contents of Catain Beheydt as a true reflection if the said scene. The affidavits Mogakane and Rawana in respect of explosives used at the scene were also formally admitted. The losses suffered by Fidelity Cash solutions as to monies and firearms robbed and to vehicles damage by the robbers were admitted.

 

[82]       There was also no challenge by the defence as to the robbery   perpetrated upon Mlambo and the damage suffered in respect of his vehicle.  

 

[83]         I accept the evidence of all the witnesses who testified to the armed robberies and murders of the two deceased on 10 December 2017 on the Soutpan Road near Marikana. Moreover, I accept the evidence of the witness Phoshoko that the attackers disguised themselves with balaclavas and were wearing gloves.

 

[84]       I accept the totality of the ballistic evidence adduced by the State as well as the chain of evidence regarding the handling and non-contamination of all the ballistics exhibits in this matter and find that this was accurate and reliable evidence.

 

[85]       In the result, I find that there were at least nine firearms, as individualised by Warrant Officer Mulungwa in her affidavit and testimony, that had been fired at the scene on the evidence of. The seventh individualised firearm on her findings was the one that had fired the fired cartridges B23, B24 and B25, three shots fired.

 

[86]       I find further that  on the evidence of Captain Makhatshwa that the Dashprod model SAR M14 found in the bag at Accused No 2’s home and which was ballistically tested was positively linked to fired cartridge B23 found at the scene. I find that on the evidence of Captain Ntini some of the spent cartridges he examined had been fired at the scene which included exhibit B23. Accordingly, I find that the Dashprod SAR M14 found in the bag in question was used and fired in the course of the cash in transit heist in this case. 

 

[87]       I further accept the evidence as to the taking of the buccal sample by Khumalo as true and reliable as well as the chain of evidence regarding due sealing thereof in the evidence bag and due delivery thereof to the Forensic Science Laboratory.

 

[88]       I accept the DNA evidence, the taking of the DNA swab from Accused No 3, the chain of evidence regarding the handling and delivery of the DNA exhibits examined by Van Dyk as well as her evidence adduced that Accused No 3’s DNA was found inside a glove and inside a balaclava in the bag containing the firearms, gloves, balaclavas magazines and live ammunition. I do however have due regard to her evidence regarding the balaclava in which she found Accused No 3’s DNA that multiple individuals had  touched at it at some point and that The same individual Accused No 3 could be read into the mixture on that balaclava, but that it was a huge mixture. She did however testify and I accept her evidence that as regards the glove at least two people contributed to the mixture, but It was less than with the balaclava, so it gave a clearer picture.

 

[89]       Moreover as regards the balaclava, my attention being drawn by a conclusion I reached by Defence Counsel in his Heads of Argument regarding the weight to be attributed  to the DNA inside the balaclava and find on further interrogation of this aspect, that first of all it was Accused No 3’s DNA that was found, albeit in a heavy mixture, inside the balaclava and secondly taken together with his DNA found inside the glove, and thirdly the probability that these two items of paraphernalia similar to that worn by the attackers during the cash in transit heist would be in a bag in which the Dashprod SAR M14 which individual assault rifle fired B23 which matched the ballistics test shot as well as B24 and B25 fired at the scene.

 

[90]       I accept the evidence of Fraschia and Mosana and the chain of evidence regarding the sealing of exhibits found at Accused No 2’s house and the subsequent delivery to the Forensic Science Laboratories.

 

[91]        I accept the evidence of Silinda, Machete and Mankayi. Silinda and Machete corroborated one another in material respects. The averment that they lied and infringed the Accuseds’ Constitutional rights are unfounded especially having regard to the notices of rights Exhibits “F” and “G” signed by both of them. Mankayi was an impressive witness and I find that the criticisms levelled against him by Defence Counsel are unwarranted. I find that the fact that a numerous allegations made by Accused No 3 in respect of conduct of these three State witnesses as to what they allegedly did, or said or did not do, which emanated from in his evidence and cross-examination were either not put to them, which was grossly unfair to them. or the exact opposite of an instruction given to his Defence Counsel was put. For example, it was put to Mankayi in respect of Statement Regarding Interview with Suspect document Exhibit “N”, on Accused No 3’s instruction to his counsel that:

 

“…when you interviewed the accused, accused 3 you just told him to sign on the bottom part, you did not read each and everything that was, each and every column to the accused when you interviewed him.”

 

[92]       This was put by Defence Counsel obviously on the premise that Accused No 3 was present when the document was completed by Mankayi. This is a far cry from his evidence under cross-examination that he had instructed his counsel at the prison when he had consultations with him that the police officer wrote it by himself and forged his signature and that was the first time that he had seen the document during those consultations and never before.

 

[93]        The averment in Defence Counsel’s Heads citing S v Gcam Gcam 2015 (2) SACR 501 SACR that the police are known to succumb to the temptation to extract confessions from suspects through physical violence or threats of violence rather than engage in the painstaking task of thoroughly investigating a case. On this note, in his Heads of argument Defence Counsel makes the submission that “there is reason to believe that the police colluded to falsely implicate Accused No 3 on the counts of possession of unlicensed firearms and ammunition as they have shown partiality in their investigations which led to his arrest.”

 

[94]       I find that the averment that there was collusion of zealous police officers to implicate the Accused No 3 is unwarranted, as it is clear from Silinda’s evidence that when talking to Accused No 3 at his home he realised that Accused No 3 was starting to implicate himself, so he telephoned Captain Machete who was a ranked officer, who was not part of the task team, to come to the house to carry on the interview as Silinda was only a sergeant. The same situation arose in the instance where Warrant Officer Mankayi when interviewing Accused No 3 had to stop recording Accused No 3’s statement when he realised that he was starting to implicate himself. He told him he would arrange for a senior officer from another police station to take his statement who knew nothing about the case.

 

[95]       I therefore accept the evidence of Silinda and Machete and find on a conspectus of all the evidence in the case, that they were reliable and truthful witnesses, as regards inter alia the admissions which they stated were made voluntarily by him[9] that they were his firearms and as well as that Accused No 3 pointed out the firearms[10] and confirmed they were his. He was furthermore linked to the contents of the bag through his DNA.

 

[96]       I find that the allegations of the severe assault alleged to have been inflicted on Accused No 3 by Silinda, Machete, Mankayi and the other policemen who wore balaclavas was unimpressive and find that apart from swollen and bleeding wrists he had no other proven injuries and was not assaulted by them. I moreover find that his conflicting, vacillating and exaggerated evidence as to the nature of his injuries was not supported by his own defence witnesses, Sgt David Hlongwane, to whom he also attributed a comment that all the police at the police station lied,  as well as Magistrate Rapulana, who contradicted his version that he had lifted his T-shirt and shown her the bruises on his back, as well as the lack of any medical evidence as to the injuries to his back and that he required an operation.

 

Accused No 2

 

[97]       As regards Accused No 2, I found her intelligent and well spoken. The account she gave of what happened at the house was, more or less, consistent when referring to what happened in her house in respect of the bag that Executive brought. However, she was  disingenuous about not being informed of her Constitutional rights, Exhibit “F” proves otherwise. She lied further about the short chubby man, Jabu, being at the police station and was one of the people together with Accused No 3 who were on her  and Accused No 3’s version assaulted in the passage inside the police station, as it is evident that Jabu as well as Jafta were not there and not detained in the cells there on that day. She also lied about Accused No 3 being assaulted at the Hawks offices in Pretoria as she admitted that she could not see what was happening in the offices there. She also contradicted herself on a number of other issues which deviations I do not find to be especially material.

 

[98]       The question is whether she knew that there were firearms in the bag before the police arrived. I find that she ought to be given the benefit of the doubt in this regard. There is no evidence to suggest that Executive had told her what was in the bag. There is no evidence that the bag was opened by her from the time that he had placed it in the bedroom until the police found it. There is no convincing evidence to gainsay her evidence that it was only after the police showed her what was in the bag she saw what looked like black pipes and was told that they were firearms. That she did not confront Executive in the dining room as too why he had brought a bag of firearms and was too shocked and speechless to confront Executive as to how he could have dared bring these into her house is not gainsaid by the State. She remained quiet, which under those circumstances can be seen to have been an exercise of her right to silence. Her defence is reasonably probably true. On the facts and the probabilities I remain unconvinced that she had known that there were firearms on the bag even though I agree with State Counsel that her conduct when the police arrived and asked her about the bag she was evasive asking “what bag” when she obviously knew it was the bag that Executive had brought for safekeeping earlier that morning. She was obstructive to an extent, the bag was hidden under a bed and the room was locked. Furthermore she was evasive with regard what she saw in the bag when it was eventually opened in her presence. However the State did not challenge her or gainsay her evidence that she had never handled the bag or lifted it and could not say of it was heavy. It may seem suspicious and probably knew that the bag contained something illegal. The evidence about what Executive said in the dining room that Accused No 2 did not know what was in the bag was not challenged by the State. I am therefore unconvinced that she knew that there were firearms in the bag until it was opened by the police, and consequently lacked mens rea. I find that the State failed to prove the alleged contravention of section 3 of The Firearms Control Act 60 2000 and that her defence is reasonably possibly true.

 

[99]       In S v Kwanda 2013 (1) SACR 137 (SCA) the Honourable Theron JA, Streicher JA and Bosielo concurring, held  that accepting that the appellant had conspired with his companions to commit robbery, and even that he was aware that some of his co-accused possessed firearms for the purpose of committing the robbery, such knowledge on his part was not sufficient to establish that he had the intention to jointly possess the firearm and ammunition. It was held that the conviction on the firearms charges in that case had accordingly to be set aside. At page 139 [6] the Honourable Theron JA held that:

 

“Adopting the reasoning in Nkosi and Mbuli, and even if the appellant was aware that Mahlenche was in possession of the firearm, such knowledge is not sufficient to establish that he had the intention to jointly possess the firearm with Mahlenche. In this matter there are no facts from which it can be inferred that the appellant had the necessary intention to exercise possession of the firearm through Mahlenche or that the latter had the intention to hold the firearm on behalf of the appellant.”

 

Accused No 3

 

[100]    As regards Accused No 3, I find that he was evasive, disingenuous, mendacious and adapted his evidence, setting his sails to the wind when it suited him, more especially under cross-examination and gilding the lily as the cross-examination progressed. There is an abundancy of examples thereof in my summary of the evidence.

 

[101]    His evidence under cross-examination by State counsel that Mankayi fraudulently devised the interview document Exhibit “N”, wrote it up in his absence, forged his signature and initials on the document and he only saw the document later at the prison during consultations with his counsel is a prime example of his mendacity and was in direct conflict with instructions given to his Defence Counsel, which were put to Mankayi in cross-examination that Accused No 3 was forced to sign the interview document.

 

[102]    His version regarding lending gloves to Temba grew substantially from it originally being put to Silinda that he wears gloves when he rides his bike and lent them to Temba, to having lent him a kitbag with gloves and a bandana in it, to then adding a balaclava to the contents of that kitbag in trying to get around his DNA also having been found by Van Dyk inside the balaclava, to stating that the balaclava examined by Van Dyk was not his and had been contaminated by the DANA in his glove, and then being confronted that his DNA was found inside the balaclava and inside the glove stating that they could be word inside out. He was clutching at straws. I find that as argued by State Counsel that his evidence of lending any such items to Temba was contrived and fabricated. There was no super-bike at his house.

 

[103]    His evidence that Jabu took the police to Accused No 2’s house is also a lie. Accused No 2 did not testify that she saw him there. Furthermore, that Jabu was at Rietgat, is unsupported by Hlongwane who gave evidence as to who was detained there on the night of 6 July 2018 and this did not include Jabu.

 

[104]    When his account and details of the alleged assault upon him on the night of 5/6 July 2018 underwent material changes under cross-examination, adding allegations that he had not mentioned and which were never put to State witnesses, that his assailants all wore balaclavas and under cross-examination testified that he recognised SIlinda while he was being assaulted in the house after having stated earlier that Silinda and Machete only took off their balaclavas when the left in the car to Hammanskraal.

 

[105]    In addition it was only under cross-examination that he added that he was struck with the back  of  a rifle on his waist after he had been tubed with a plastic bag, which was completely new evidence never put to the State witnesses.

 

[106]     His evidence that the police who entered his house that night according to his version slapped his wife in the face is inconsistent with the evidence she gave.

 

[107]    His evidence that Machete was involved in the assault during the night on his version and made utterances that he had to be beaten, was the leader of the team was never put to him and is incredulous.

 

[108]    Apart from lying, on a conspectus of all the facts and probabilities his evidence is false beyond a reasonable doubt. The most glaring improbability in his defence version is that the police would arrest and charge an accused of possession of firearms and ammunition when to this day he has never seen the assault rifles recovered except on photos to this day.

 

Tsakani Lina Mdlele

 

[109]    As regards the evidence of Accused No 3’s wife, Tsakani Lina Mdlele, did not corroborate Accused No 3’s evidence in any material respects. Her evidence did not corroborate material aspects of Accused No 3’s evidence on the occurrences at their house as is evident from the summary of her evidence supra, for instance she got the sequence of events totally wrong. Moreover, her demeanour and performance on the witness stand were unimpressive.

 

[110]    She concentrated in her account on a white policeman and a police lady taking her to a bedroom and questioning her. Her sequence of the events on the night in question were entirely out of kilter with the evidence of the sequence given by Accused No3.

 

[111]    She also stated that he had been hit with a plank at the door when the attack started, something he had not mentioned. Her demeanour on the witness stand was poor. Inter alia she was taken aback as to what to reply when asked if Accused no 3 belonged to a club and obviously had scant detail on this topic and said something vague that he belonged to a club and went to funerals.

 

[112]    She mentioned two cars in the garage, nothing about a motorbike and never claimed to have been struck on her face.

 

[113]    She also testified that she had visited Accused No 3 on various occasions at the prison.

 

[114]     In the result I reject the evidence of Accused No 3 as fabricated, and mendacious on the basis of the obvious lies he told and the improbabilities built into his evidence.

 

[115]    Tsakani Lina Mdlele’s evidence is rejected as being unreliable, disingenuous on material aspects andas regards her performance and demeanour on the witness stand. Her version was materially from that of Accused No 3 and the inevitable conclusion is that she was disingenuous.

 

[116]    I am satisfied that Magistrate Rapulana and Sgt Hlongwane  gave reliable and truthful evidence, which contradicted Accused No 3 on material aspects regarding his claim to have been grievously injured by the arresting officers and other police officials. I accept their testimony.

 

[117]    On all material aspects and the probabilities Silinda, Machete and Mankayi corroborated one another and did not deviate from their evidence on any material aspects of their testimony. I accordingly accept their evidence as being reliable and truthful and this conclusion is based on the totality of the evidence deposed to before me.

 

[118]    Having accepted the State evidence the remaining question is whether the Court can draw the inference from the evidential material and evidence received by the Court that Accused No 3 was a co-perpetrator at the scene of the armed robberies and murders and other offence in the indictment on 10 December 2017 on the Soutpan Road near Marikana. This inference can be made, however to impose criminal liability on Accused No 3 must be the only reasonable inference, all other inferences excluded in terms of the authorities on circumstantial evidence. I have been referred to R v Blom 1939 AD by Defence Counsel, and to the excerpt that:

 

“the first rule is that the inference sought to be drawn must be consistent with all proven facts, if it is not, the inference cannot be drawn and the second rule is that such proved facts should be such they exclude every reasonable inference from them save the one sought to be drawn and if these proved facts do not exclude all other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct”

 

[119]    Defence Counsel contended in his Heads of Argument and in argument before the Court, in deference to him is speculative, that:

“the inference sought to be drawn includes other reasonable inferences that can be drawn that the firearms could have been in possession of someone else by virtue of them being movable objects, which in turn cast a doubt on the inference sought to be drawn that the accused persons were present at the scene on the 10th of December.” (The underlining is my own.)

 

[120]    Defence Counsel contended further:

“An inference can also not be drawn based on the fact that the assailants at the scene on the 10th of December 2017 were wearing balaclavas to hide their face, as there was no evidence given about the type of balaclavas worn by the assailants and ones found at Accused two’s house. A Balaclava can be worn by anyone at any stage at a scene of crime, which now includes other reasonable inferences that can be drawn that it was other people and not the accused persons and for this reasons there is a doubt as to whether the inference sought to be drawn will be the correct inference to be drawn under the circumstances.

 

Mere fact that accused number three’s DNA mixture was found in one of the Gloves and his DNA mixture on one of the balaclavas does not in itself in isolation renders the accused guilty of counts one to four, the Court should draw an inference from all proven facts and consider the evidence holistically. The fact that other peoples mixture creates room for another inference to be drawn that the bag belongs to someone else.”

(The underlining is my own.)

 

[121]    It is evident from the Defence Counsel’s argument that he has dealt with each segment of evidential material on its own, in isolation.

 

[122]    However, taking the following combination of the evidential material and evidence proven supra, after my further careful scrutiny and interrogation, of:

 

§   firstly, the unassailable and unchallenged evidence that it was Accused No 3’s DNA that was found inside the balacalava, albeit a heavy mixture;

 

§  secondly the first fact taken together with Accused No 3’s DNA found inside the glove;

 

§   thirdly, and I do not agree with Counsel for the Defence’s submissions in this regard, what were the odds that these two items of paraphernalia. similar to that worn by the attackers during the cash in transit heist, would be in a bag in which the assault rifles were found and would have Accused No 3’s DNA on them;

 

§  fourthly the Dashprod SAR M14 was ballistically proved to have spent cartridge B23 which matched the ballistics test shot as well as B24 and B25 fired at the scene; and

 

§  fifthly Accused No 3 had admitted voluntarily, om my findings supra that the firearms in the bag were his.

 

The Court consequently finds that the only inference to be inexorably drawn, with exclusion of every reasonable inference, is that Accused No 3 was at the scene acting in concert with the other co-perpetrators in the commission of the crimes in question. 

 

[123]    In the light of the military precision in which the cash in transit armed robbery was executed as elaborated upon in paragraph 79 supra it would have been an impossibility to have struck so effectively and to leave the scene so rapidly having achieved their  goals had there not been prior agreement between the approximately 21 assailants. As a result of my finding in [120] supra the only inference is that Accused No 3 could only have been a party to such agreement.

 

[124]     In this regard I refer to the dicta in the cases in S v Safatsa and Others 1988 (1) SA 868 (A), applied in S v Mgedezi and Others 1989 (1) SA 687 (A) at 705 I to 706 where the Honourable Botha JA held that:

 

“In the absence of proof of a prior agreement, an accused who was not shown to have contributed causally to the killing or wounding of the victims (in casu, group violence on a number of victims) can be held liable for those events on the basis of the decision in S v Safatsa and Others 1988 (1) SA 868 (A) only if certain prerequisites are satisfied. In the first place, he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of the assault on the victims. Thirdly, he must have intended to make common cause with those who were actually perpetrating the assault. Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others. Fifthly, the requisite mens rea ; so, in respect of the killing of the deceased, he must have intended them to be killed, or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue.

 

[125]    In any event the finding in [122] on the circumstantial evidence places Accused No 3 on the scene where the offence was committed, aware of the assaults, inter alia 45 shots were fired at the scene, the  Dashprod assault rifle, that he claimed was his, was fired three times at the scene in the proximity of the cash truck as reflected on  Beheydt’s computer map, demonstrating common cause on his part  with the persons who fired the other eight firearms at the scene, according to the ballistic evidence. Death was foreseeable and mens rea on his part had to have existed, as two people were shot, one dying at the scene and the other on the way to the hospital. Victims were robbed and the cash truck looted. All of this would have been aware to a co-perpetrator in what was akin to a war zone, with sounds of a truck being bombed, on the evidence of the surviving victims’ evidence. In the Court’s view, the Mgedezi requirements were met.

 

[126]    The State presented no evidence to prove the elements of Count 3 (formerly Count 5) a contravention of section 18(2)(b) of the Riotous Assemblies Act 17 of 1956, a conspiracy to commit robbery, prior to and during December 2017, but including 10 December 2017 at or near Marikana village, in that the accused  unlawfully and intentionally conspired with one another and other accomplices unknown to the State to aid or procure the commission of / or commit an offence of robbery with aggravating circumstances.

 

Convictions

 

[127]    The Court is not bound by the State Counsel’s concessions.

 

[128]    The Court finds Accused No. 2 not guilty on all counts in the indictment and she is acquitted.

 

[129]    (Bearing in mind that the State has conceded that in respect of certain counts mentioned supra a duplication of convictions will arise (see paragraphs [70] to [72], with which I agree, a renumbering of counts is appropriate to obviate confusion.

 

[130]    The Court finds Accused No. 3 guilty of:

 

Count 1 (formerly counts 1 and 2 in the indictment) Contravention of Contravention of section 3 read with sections 1, 103, 117, 120, and 121(a) read with Schedule 4 of the Firearms control Act 60 of 2000 and further read with section 250 of 1977, unlawful possession of firearms, a 5.56 x 45mm calibre Vektor model LM5 semi-automatic assault rifle and a 5.56 x 45mm calibre Dashprod model SAR M14 semi-automatic rifle on 6 July 2018 at Soshanguve;

 

Count 2 (formerly counts 3 and 4 in the indictment) Contravention of section 90 read with sections 1, 103, 117, 120(1)(a), and 121 read with Schedule 4 of the Firearms control Act 60 of 2000 and further read with section 250 of 1977, unlawful possession of ammunition, 5.56 x 45mm calibre ammunition on 6 July 2018 at Soshanguve

 

[131]    The Court finds Accused No 3 not guilty of:

 

Count 3 (formerly count 5 in the indictment) Contravention of section 18(2)(b) of the Riotous Assemblies Act 17 of 1956, a conspiracy to commit robbery, prior to and during December 2017, but including 10 December 2017 at or near Marikana village, in that the accused  unlawfully and intentionally conspired with one another and other accomplices unknown to the State to aid or procure the commission of / or commit an offence of robbery with aggravating circumstances.

 

[132]    The Court finds Accused No 3 guilty of:

 

Count 4 (formerly count 6 in the indictment) Murder read with the provisions of section 51(1) of Act 105 of 1997, in that on 10 December 2017 at or near Marikana village the accused unlawfully and intentionally killed Klaas Mshoto Sehemo, an adult male by shooting him with a firearm.

 

Count 5 (formerly count 7 in the indictment) Murder read with the provisions of section 51(1) of Act 105 of 1997, in that on 10 December 2017 and or near Marikana village the accused unlawfully and intentionally killed Isaac Lebtla Mathiba an adult male by shooting him with a firearm.

 

Count 6 (formerly count 8 in the indictment) Robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977 and read with section 51(1) of Act 105 of 1997 in that on 10 December 2017 and or near Marikana village the accused did unlawfully and intentionally assault Legeshe Gaborone Phoshoko, Klaas Sehemo, Isaac Mathiba and Boitumelo Mogale and with threats and violence take from them cash in the amount of R641 790.00, the property of Fidelity Cash Solutions or in their lawful possession.

 

Count 7 (formerly count 9 in the indictment) Robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977 and read with section 51(1) of Act 105 of 1997 in that on 10 December 2017 and or near Marikana village the accused did unlawfully and intentionally assault Legeshe Gaborone Phoshoko and with threats and violence take from him a firearm, to wit a 9mm pistol with serial number 0511174 containing 15 rounds of live ammunition, the property of Legeshe Gaborone Phoshoko or in his lawful possession.

 

Count 8 (formerly count 10 in the indictment) Robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977 and read with section 51(1) of Act 105 of 1997 in that on 10 December 2017 and or near Marikana village the accused did unlawfully and intentionally assault Boitumelo Mogale and with threats and violence take from him a firearm, to wit a ARO M16 rifle with serial number 851537 containing 30 live rounds of ammunition, the property of Fidelity Cash Solutions or in the lawful possession of the said Boitumelo Mogale.

 

Count 9 (formerly count 11 in the indictment) Robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977 and read with section 51(1) of Act 105 of 1997 in that on 10 December 2017 and or near Marikana village the accused did unlawfully and intentionally assault and with threats and violence take from Isaac Mathiba a firearm, to wit a 9mm pistol, the property or in the lawful possession of Isaac Mathiba.

 

Count 10 (formerly count 12 in the indictment) Robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977 and read with section 51(1) of Act 105 of 1997 in that on 10 December 2017 and or near Marikana village the accused did unlawfully and intentionally assault or with threats and violence take from Mpho Government Mlambo a firearm, to wit a 9mm pistol (P99), with serial number 02370 containing 15 live rounds of ammunition.

 

Count 11 (formerly count 13 and 15 in the indictment) contravention of section 22(2) of the Explosives Act No. 15 of 2003 read with sections 29(1)(a) and 15(1) of the said Act, in that upon or about 10 December 2017 and at or near Marikana Village the accused unlawfully and intentionally delivered, placed, discharged, detonated or initiated explosives with intent to cause death or serious bodily injury to any other person or to damage or destroy any place, facility or system.

 

Count 12 (formerly count 14 in the indictment) Malicious Injury to property, in that on 10 December 2017 and or near Marikana village the accused did unlawfully and intentionally damage the property of Fidelity Cash Solutions, to wit an Isuzu bakkie with registration number DM 55 MF GP by shooting at it with firearms causing it to collide with another vehicle to wit a Golf 5 with registration number DJ 94 CN GP.

 

Count 13 (formerly count 16 in the indictment) Malicious Injury to Property, in that on 10 December 2017 and or near Marikana village the accused did unlawfully and intentionally damage the property of Mpho Mlambo, by shooting at a Fidelity Cash Solutions’ vehicle causing it to collide with his vehicle, to wit a Golf 5 with registration number DJ 94 CN GP.

 

                                                                                               

               B G MORRISON AJ

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

 

DATE OF HEARING: 7 OCTOBER 2019 TO 26 JUNE 2020

DATE OF JUDGMENT: 22 JULY 2020

 

 

APPEARANCES:

 

STATE: ADV A KOALEPE

INSTRUCTED BY NATIONAL PROSECUTING AUTHORITY

 

MR M MADIRA FOR ACCUSED NO 2 AND 3

INSTRUCTED BY:  Gwebu Inc Attorneys

Menlyn Square Office Park

116 Lois Avenue

Menlyn 0181 Tel: 012 348 2828 / 082 5929 421

 

 

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