S v Majola and Others (98/2013) [2014] ZAGPJHC 421 (30 October 2014)

REPUBLIC OF SOUTH AFRICA

GAUTENG HIGH COURT, JOHANNESBURG LOCAL DIVISION

CASE NO: 98/2013

DPP REF NO: JPV 017/2013

DATE: 30 OCTOBER 2014

In the matter between:

THE STATE

And

MAJOLA, ANTHONY........................................................................................................ACCUSED 1

KHUMALO, NELSON.......................................................................................................ACCUSED 2

MABENA, BONGANI........................................................................................................ACCUSED 3

JUDGMENT

Introduction

1. In this matter the Court was ably assisted by two learned assessors, Mr Norman Mtsweni and Ms Letitia Kelly. The judgment that follows is a unanimous decision of the Court.

2. On the 3rd of October 2012, at or about 13h45, the Post Office in the Flora Centre in Florida (the Centre) was robbed of cash in the amount of approximately R40 000.00. The perpetrators, who were many, carried unlicensed and prohibited firearms and ammunition. During the course of the robbery the firearms carried by some of the perpetrators were discharged. After conducting the robbery, and as they were exiting the Centre, one of them discharged the firearm he was carrying. After exiting they drove off in two vehicles, a white bakkie (the bakkie) and a Quantum Kombi (the Quantum). The driver of the bakkie was involved in a shoot-out with a policeman named Gabri Johan Fouche. The policeman (the deceased) was shot by the driver of the bakkie and died of wounds he sustained. The driver of the bakkie was himself shot in the back of his head by the deceased. He was immediately accosted and arrested.

3. In consequence of the events described above each of the accused stand indicted on the following charges:

“Count 1

Murder read with s 51(1) of Act 105 of 1997.

Count 2

Robbery with aggravating circumstances as defined in s 1 of Act 51 of 1977, read with s 51(2) of Act 105 of 1997.

Count 3

Possession of a prohibited firearm – in contravention of Section 4(1)(a)and Section 4(1)(f)(i) and (iv) read with the provisions of Section 1, 103, 117, 120(1)(a) and Section 121, read with Schedule 4 and Section 151 of the Firearms Control Act, 60 of 2000, and further read with Section 250 of the Criminal Procedure Act, 51 of 1977.

Alternatively: Possession of an unlicensed firearm - in contravention of Section 3 read with the provisions of Section 1, 103, 117, 120(1)(a) and Section 121, read with Schedule 4 and Section 151 of the Firearms Control Act, 60 of 2000, and further read with Section 250 of the Criminal Procedure Act, 51 of 1977.

Count 4

Possession of Ammunition – in contravention of Section 90 read with Sections 1, 103, 117, 120(1)(a) and Section 121, read with Schedule 4 and Section 151 of the Firearms Control Act, 60 of 2000, and further read with Section 250 of the Criminal Procedure Act, 51 of 1977.

Count 5

Possession of Unlicensed Firearms – in contravention of Section 3 read with the provisions of Section 1, 103, 117, 120(1)(a) and Section 121, read with Schedule 4 and Section 151 of the Firearms Control Act 60 of 2000, and further read with Section 250 of the Criminal Procedure Act, 51 of 1977.”

4. The accused, who were all legally represented, pleaded not guilty to all five counts. They were appropriately informed of the applicability of the prescribed minimum sentence in terms of s 51(1) of Act, 105 of 1997. All three accused chose not to disclose their defence. Their approach is countenanced by s 115 of the Criminal Procedure Act, 51 of 1977 (“the CPA”). However, at the commencement of the trial, they each made certain admissions in terms of Section 220 of the CPA. The admissions were recorded in writing. They were:

“1 That the deceased is the person mentioned in the indictment, to wit, Gabri Johan Fouche. 2 That the deceased died on 03 October 2012 as a result of a gunshot wound of the abdomen and chest he sustained on or about 3 October 2012 at or near Beacon Road, Florida, in the district of Johannesburg. 3 That the body of the deceased suffered no further injuries from the time at which the wound was inflicted on 3 October 2012 until a post mortem examination was conducted thereupon. 4 Dr Gina Marie Rowe conducted a post mortem on the body of the deceased on 4 October 2012 and accurately recorded her findings on Exhibit “B”. 5 The correctness of the facts and findings of the post-mortem examination as recorded on Exhibit “B” by Dr Gina

Marie Rowe. 6 The correctness of the photographs of the scene, the key and notes thereto as reflected in Exhibit “C”. 7 That the firearms, cartridges, bullets, spent bullets and projectiles recovered at the scenes were correctly recovered, packed, sealed and were not tampered with until sent to the Ballistics Unit of the Forensic Science Laboratory for analysis. 8 The correctness of the ballistics report by SematlaGloudiaMatjela as reflected in Exhibit “D”. 9 The correctness of the ballistics report by Jean KarelNieuwenhuys as reflected in Exhibit “E”. 10 That an armed robbery occurred at the Flora Centre post office at approximately 13:45 on 3 October 2012. 11 That the deceased was an on-duty police officer at the time of the shooting incident. 12 All three accused did not have licences to possess firearms.”

5. During the course of the trial, three trials within a trial were held. This was necessitated by the fact that each of the accused had made certain statements while in custody, which the State applied, in terms of s 219A of the CPA, to have admitted as evidence against them. Each of them opposed the State’s application.

The first trial within a trial

Dlamini’s evidence

6. On 4 October 2012 the investigating officer in this case, Constable Dlamini (Dlamini), accompanied by Constable Derick Masonto (Masonto),

visited the Helen Joseph Hospital (Helen Joseph) in search of Accused 1, who had been admitted there the previous day. Upon their arrival they were informed that Accused 1 was transferred to the Leratong Hospital (Leratong), after being stabilised at Helen Joseph. They proceeded to Leratong where they located Accused 1 in a ward sitting on the side of a bed with one hand cuffed to the post of the bed. They received permission from the nurses in charge of the ward to interview Accused 1. The nurses indicated that Accused 1 was capable of conversing with them and that they saw no risk to Accused 1’s health if he conversed with them. The policemen found Accused 1 to be conscious. They introduced themselves to Accused 1, informed him of his rights and told him that they were there to conduct an interview with him. The interview was conducted by using the official South African Police Services Form titled “Statement Regarding Interview with Suspect” (SAPS 3M(m) Form).

7. The SAPS 3M(m) Form is a detailed document which contains specific instructions to the officer interviewing a suspect. It is designed to ensure that the officer pays particular attention to the rights of the suspect and that he conducts the interview in a systematic

fashion. Thus, for example, paragraph 3 of the Form indicates to the suspect that during the course of the interview s/he is not obliged to make any statement or to answer any questions and that any statement made or answer given may be used as evidence in a court of law against the suspect. It further informs the suspect that s/he is entitled to consult with a legal practitioner. The paragraph concludes with a sentence which records that the suspect understood the rights s/he was informed of, as well as the purpose of the interview.

8. According to Dlamini, he faithfully adhered to the contents of the SAPS 3M(m) Form when conducting the interview. Accused 1did not dispute that the SAPS 3M(m) Form was used as the basis for the interview.

9. At the commencement of the interview Dlamini informed Accused 1 that he would be asking Accused 1 certain questions, which Accused 1 was not obliged to answer. Accused 1 responded by stating that he understood what Dlamini had said and that he had no difficulty in answering any questions. He asked Accused 1 if he wanted his legal representative to be present while the interview was being conducted, to which Accused 1 replied that he did not want one to be present, and that he had no difficulty in answering any questions Dlamini had for him. Dlamini then asked him questions and documented his answers on the SAPS 3M(m) Form. The interview was conducted in Isi-Zulu but the answers were recorded in English. At the conclusion of the interview, Dlamini read the answers back to Accused 1, who confirmed that they correctly reflected what he had said. Dlamini then signed the document at the end and initialled each relevant paragraph. He asked Accused 1 to do the same. Accused 1 agreed and did so. Masonto witnessed the entire interview as well as the signing of the document by Dlaimini and Accused 1. He, accordingly, signed the document as a witness.

10. Thus, according to Dlamini, Accused 1 was fully cognisant[1] at the time of the interview and participated therein with complete free will after having been apprised of his rights.

Masonto’s evidence

11. Masonto confirmed the testimony of Dlamini, which is that they were duly authorised by the medical personnel at Leratong who were in charge of Accused 1 to conduct the interview with Accused 1. He was particularly adamant in his testimony that during the interview

Accused 1 was fully conscious, of clear mind, responsive and gave the statement freely and voluntarily after having been informed of his constitutional rights.

Documentary evidence

12. Before closing its case, the State presented documentary evidence consisting of the notes of the hospital regarding the health and treatment of Accused 1 at the time of his admission on 4 October 2012. Accused 1 did not contest the authenticity or veracity of the contents of these notes. Nor did he oppose the State’s request that they be admitted as evidence. The notes show that Accused 1 was taken to the Helen Joseph on 03 October 2012, where he received some treatment and was later transferred to Leratong for further treatment. The notes regarding his admission at Helen Joseph read:

“04/10/12: 16h20: Brought stich (sic) room accompanied by policemen, wheeled by stretcher, on room air, conscious with history of gun shot on head.....”

“04/10/2012: 16H50: Seen and examined by doctor, admitted Ward 10 for monitoring and further management.”[2]

The notes regarding his admission and his condition upon his admission at Leratong read:

“04/10/2012: 20h00: Male suspects (sic) brought in by police officers as transfer back (sic) from Helen Joseph Hospital. Suspect was brought in on wheelchair with no clothes on. He was covered with a hospital sheet.

History: Suspect was shot by police on the head after being involved in a robbery.

Assessment: patient is conscious and able to talk, responds well to commands, well orientated, breathing at (sic) room air, he is able to walk without assistance, a dressing has been applied from casualty, no bleeding or oozing noted, entry wound noted, no exit wound, vital signs done and recorded as BP: 116/65, Pulse : 81, Temperature: 36C, Resparatulle: 22.”[3] (Emphasis added).

Accused 1’s evidence

13. In a quest to demonstrate that the statement recorded by Dlamini and witnessed by Masonto was not made by him, Accused 1 testified. He presented two versions. The first is that he is sure that upon being shot in the afternoon of 3 October 2012 he lost consciousness and regained consciousness only on 5 October 2012 when he found himself handcuffed to a bed in a ward in the Leratong Hospital. He does not recall being admitted to the Helen Joseph Hospital, as he was unconscious at the time. He does recall regaining consciousness while being treated at the Leratong Hospital. On this version, he went on to say that he did not meet Dlamini or Masonto on 4 October 2012. Of that he is certain and, therefore, he did not give a statement to any of them on 4 October 2012. The second version is that he has no recollection of making any statement. When asked to explain the apparent contradictions between the two versions he turned the focus onto the issue of the particular statement the State alleged he voluntarily gave to Dlamini in Masonto’s presence. He claimed that, that particular statement was not made by him. This became his third version: the first being that he made no statement, the second he has no recollection of ever making a statement, and the third, the particular statement the State relies upon is not the one made by him. His versions opened the door for the State to cross-examine on the contents of the statement, which it took full advantage of.

14. Before relating what transpired during the cross-examination, it is necessary to note that his first version is contradicted by the hospital records. According to him, he was unconscious from the afternoon of 3 October 2012 until the morning of 5 October 2012. As he did not question the veracity of the notes, it has to be accepted that they correctly reflect the state of his health at the time. According to these notes he was conscious, fully cognisant of his surroundings and fully capable of engaging in meaningful

conversation.

15. He then faced cross-examination regarding the contents of the statement he supposedly gave to Dlamini. The cross-examination was lengthy, at times repetitive but intensive. He was asked to explain whether some of the contents of the statement were correct, such as his personal details. He agreed that some were but claimed that others were not, for example he was adamant that the cell phone number recorded on the statement did not belong to him, and that the address recorded there as his residential address was not correct. He also denied that a cell phone was found on his person at the time of his arrest. He was asked if he could furnish any explanation as to how the hospital staff came to record his name correctly on the admission form. He replied that he was unable to do so. He was shown the statement and asked to explain why the State would claim that he made it, when it contained nothing that incriminated him. Again, he said he could not explain why that was so. He was asked to explain how his name came to be recorded by the staff at Helen Joseph Hospital. He said that maybe he gave it to them. When it was pointed out to him that this contradicts his claim that he has no recollection of being admitted there, he coyly responded with silence.

Conclusion on the statement of Accused 1

16. There is no doubt in my mind that Accused 1 was conscious when he gave a statement to Dlamini. The evidence of Dlamini and Masonto that, after locating Accused 1 in the ward housing prisoners, they found Accused 1 to be conscious: that Dlamini informed him of his status, the reason for their visit (which was to interview him) and that he (Accused 1) had a right not to answer any of the questions that were posed; that he was also informed of his right not to say anything, as well as the right to consult with a legal practitioner, and once informed of these rights Accused 1 clearly and unambiguously indicated a willingness to answer all questions put to him, has to be accepted as correctly reflecting what occurred at Leratong. Accused 1 claimed that he was not conscious at the time that Dlamini and Masonto visited Leratong, alternatively that he had no recollection of ever meeting them on 4 October 2012, further alternatively, that he did not make the particular statement the State relies upon, but he did not claim that the statement recorded by Dlamini was taken from him under duress. Thus Dlamini’s evidence that it was freely and voluntarily given remains unchallenged and has to be accepted.

17. For these reasons I come to the conclusion that the State has proven beyond a reasonable doubt that the statement was made by Accused 1, and that it was freely and voluntarily made. It follows then that the application of the State to have it admitted as evidence has to be granted.

The second trial within a trial

18. Accused 2, too, made a statement while in custody. His statement was made on the morning after his arrest. He was arrested during the evening of 12 November 2012. The statement was recorded by Dlamini who holds the rank of a Constable. As such he is not a peace officer.[4] It is the State’s case that this statement is an admission. Accused 2, on the contrary, contends that it is a confession. The distinction is crucial as it is common cause that if the statement is a confession it is inadmissible. This is because it was taken down by Dlamini, who by virtue of his status (Constable), is disqualified from recording a confession. Under these circumstances, it would be most convenient to first decide whether it qualifies as a confession or an admission, before dealing with the other issues concerning its admissibility.

19. A confession, it is trite, is “an unequivocal acknowledgment of guilt, the equivalent of a plea of guilty before a court of law.”[5] However,

“(t)he admission by an accused of facts which, when carefully scrutinised and, may be, laboriously pieced together, may lead to the inference of guilt on the part of the accused, however, consonant that may be with the meaning of the term “confession” in the abstract, is not a confession within the meaning of the Act.”[6]

20. The definition implies that there should be no legal defence (to the charge or to any competent verdict) available to the accused: the court should be able to convict him solely on the basis of the confession. It follows then that the accused must, in the statement,

admit, unequivocally, to all the elements of the charge – including mens rea.

21. The statement should be objectively assessed to determine whether it qualifies as a confession or not.[7]

22. Accused 2 contended that objectively assessed, the statement would allow for his conviction on the charge of robbery, or on a competent charge of accessory after the fact, as it contains an admission to all the elements of the two offences. Thus, he maintains, it is a confession and should be excluded as it was not taken by a peace officer. In contrast, the State submitted that the statement is an admission as Accused 2 dissociated himself from the robbery. The full statement reads:

“I understand the allegation against me.

I received a call from Majola on the 2012-10-03 at about 1200(sic). He told me that he want me to borrow him a bakkie he want to commit robbery in Florida complex on the same day.

It was me, Majola, Mlenzana and Mshana in a Quantum. Mlenzana knows the driver. Majola was a driver of my bakkie.Registration BB35SJ GP.

Majola left us went inside the complex to check the place and he came back and told Mshana and Mlenzanato go and they left us on the Quantum. Everything was in order. I was with the driver of the Quantum. Majola was in my bakkie (Toyota Hilux).

After some few minutes Mshana and Mlenzana came back and join me and driver of the Quantum. They were carrying blue and black plastic bag full of money and we left Majola driving my bakkie.

They gave me R1000-00 to thank me for my bakkie and we were suppose to meet with Majola. Mlenzana was carrying 9mm and Mshana’s

firearm fly wheel. From there we proceeded to Maimai Hostel”

23. The State relied on S v Molimi[8] as support for its contention that the statement was an admission. In Molimi the statement of the accused indicated that he participated in the planning of the robbery, and on the day of the robbery he was to participate therein as a lookout. The robbery was to take place between 08h00 and 09h00. He commenced performing his role from about 08h00. He waited until 10h00 but the robbery had yet to commence. He then left. The robbery took place at 11h00. At the trial the State contended that this statement constituted a confession. The trial court disagreed and dealt with it as an admission. The Supreme Court of Appeal (SCA) and the Constitutional Court (CC) agreed with the trial court. The reasoning underlying the categorisation of the statement as an admission is that the accused had left the scene of the intended crime before the crime had commenced and by so doing had dissociated himself or, at the very least, this allowed him to rely on the defence of dissociation in order to escape conviction. As a result, it would not be correct for a court to convict him on a charge of robbery if the only evidence before the court was his statement. For this reason the statement cannot be held to be confession. Similarly, the State argued, in this case, Accused 2 had, in terms of his statement, ab initio dissociated himself from the robbery and so it would not be possible for the court to convict him on the basis of the sole evidence of his statement. The statement indicates that he has left open the possibility of raising the defence of dissociation. This contention,

I find, is not persuasive for the simple reason that the facts as revealed in the statement indicate that, despite his protestation

that he was not party to the robbery ab initio, he clearly was present while it was being undertaken (he sat in one of the getaway vehicles). Furthermore, he actively associated himself with it by providing his own vehicle (the “bakkie”) to be used for purposes of transporting the other perpetrators to the robbery as well as a getaway vehicle. Thus, though he claimed not to be party to the robbery he was, for all intents and purposes, actively associated with it. Nevertheless, the statement does not indicate that he had the requisite mens rea and absent this it would not be correct to convict him on any of the charges he faced. According to the statement he lent his vehicle to Majola and received R1000-00 as a “thank-you” gift. He played no part in the planning of the robbery, was not party to it and did not share in the spoils. In the light of his explanation, especially his account that he lent his vehicle, despite being aware of what its intended use was, and his receiving of a R1000-00 as a “thank you” gift, it cannot be said that the State has, by relying on the statement alone, proved that he possessed the necessary mens rea to commit the crime of robbery. As for the charge of murder there is no indication that he was party to this offence whether directly or by virtue of sharing a common design with any of the perpetrators thereof. Similarly, with regard to the charges of possession of a prohibited firearm, possession of an unlicensed firearm and possession of ammunition, there is not a shred of evidence in the statement that indicates that he is guilty of these charges. For these reasons, on the evidence of the statement alone, he cannot be convicted of any of the crimes for which he stands accused.

24. It follows then, that in my view, the statement is an admission and not a confession.

25. That said, the controversy as to whether it is admissible or not remains. Accused 2 challenged its admissibility on the grounds that he was denied access to legal representation when he needed it. This prompted the State to rely on the evidence of Dlamini, who effected his arrest and who, while interviewing him recorded the statement, and Constable Sibusiso Jameson Nzimande (Nzimande) who, after witnessing Dlamini interview Accused 2 and record the statement, signed it in his capacity as a Commissioner of Oaths. In rebuttal Accused 2 relied on his own evidence and that of his erstwhile attorney, Mr Siphiwe Dube (Dube).

26. Dlamini’s testimony is that he arrested Accused 2 on 12 November 2012 and took him to Jeppe Police Station where he was held in custody. The next day, at 11h00 he visited Accused 2 at the police station and interviewed him. He was accompanied by Nzimande. Throughout the interview he spoke to Accused 2 in Isi-Zulu. Once again, the interview was conducted by using the SAPS 3M(m) Form. He informed Accused 2 that he was there to interview him. As mentioned before, the SAPS 3M (m) Form has been prepared by the SAPS for use during interviews of persons accused or suspected of having committed an offence. It spells out the rights of the accused persons. The two crucial aspects of these rights are his right to silence and his right to have a legal representative present during the interview. Dlamini read these rights out to Accused 2 who indicated that he fully comprehended what was conveyed to him. Accused 2 informed Dlamini that he intended to co-operate fully with him and that he would like to make a statement. Accused 2 specifically denounced his right to have a legal representative present during the interview. Nor did he say that he had already secured the services of a legal representative. Instead, he indicated that he was willing to answer any questions posed to him in the absence of a legal representative. Dlamini then asked Accused 2 to relate what he knew about the robbery at the Florida Centre and the use of his vehicle (referred throughout the trial as “the bakkie”), in the said robbery. In response thereto Accused 2 gave him an explanation about how his vehicle came to be in the possession of Accused 1 and what the intention of Accused 1 was with regard to the usage of his vehicle. After recording what Accused 2 had said, he read it back to Accused 2

who agreed that what was recorded was exactly what he had relayed to Dlamini. Thereafter Accused 2 freely and voluntarily signed the statement and Nzimande signed it as a Commissioner of Oaths.

27. Dlamini was extensively cross-examined on his version. Much of the cross-examination focused on the fact that numerous aspects of the SAPS 3M(m) Form were incorrectly filled in. In various parts of the SAPS 3M(m) Form the person completing it is offered a number of options and is instructed to delete whichever option is inapplicable. Dlamini had on more than one occasion failed to delete the appropriate option. However, he had no difficulty in admitting that he failed to do so and explained this as immaterial errors that did not undermine the fact that the statement recorded was made by Accused 2 and that the statement was freely and voluntarily made. He was further confronted with Accused 2’s version, which was that at the time of the arrest (i.e. the day before the statement was taken) he, Dlamini, was approached by a gentleman who introduced himself as the attorney of Accused 2. The gentleman had given his name and other credentials to Dlamini and had specifically informed Dlamini that any statement taken from Accused 2 should only be taken in his presence. He vehemently denied that this version was true and correct. Instead, during the arrest, someone came and told him he was a lawyer, but did not say he would represent Accused 2. The person, whom he later came to learn was Dube, told him that he was related to Accused 2. Dlamini also pointed out that the family of Accused 2 had actually chosen another legal representative to represent Accused 2 at his first appearance in court. He admitted that Dube was present at the time of the arrest and that Dube followed them to the Jeppe Police Station. He claimed that Dube told him that he was related to

Accused 2 and he was interested to know for what offence Accused 2 was being arrested. Dube did not supply him with his telephone

contact number. However, Dube did take his (Dlamini’s) telephone number and said that he would contact him the next day.

Most important of all, he was adamant that Dube did not claim to be the legal representative of Accused 2, nor did he say that if Accused 2 is to be interviewed he wanted to be present.

28. He denied that Accused 2 told him that he (Accused 2) wanted his attorney to be present during the interview. Instead, he claimed,

Accused 2 was adamant that the interview could continue in the absence of his legal representative. Much was made of the fact that on the SAPS 3M(m) Form he wrote that the interview commenced at 11h00 and that it ended at 11h00. During this period Accused 2 was asked numerous questions and answered them in isiZulu which he wrote down in English. All this is supposed to have taken place in the span of one minute.He denied that this indicated that the statement was pre-written before the interview commenced and that at the interview all he did was ask Accused 2 to sign it. He claimed that the time recorded on the statement was incorrect and that he erred in this regard. The interview lasted approximately thirty minutes. He was unequivocal in his testimony (both in chief and during cross-examination) that Accused 2 was determined to make a statement in the hope that he would be dealt with leniently as a result of his willingness to co-operate with the police during their investigations.

Nzimande’s evidence

29. Nzimande stated that he witnessed the entire interview and confirmed the evidence of Dlamini. He complemented it by stating that before Accused 2 signed he asked the customary questions posed by all Commissioners of Oath: whether Accused 2 understood the contents of the statement, whether the contents were true, correct and whether Accused 2 had any objection to taking the oath. Accused 2 responded positively to the first two questions and indicated that he had no objection to taking the oath, which he then administered. Thereafter Accused 2 signed the document. Much was made during cross-examination of the fact that his name was not inserted on the document, but this in my view does not take the matter any further as it is not disputed that both he and Accused 2 signed the document. Ndzimande conceded that he failed to follow procedure with regards to completing and co-signing the document as carefully as he ought to have, but maintained that he followed it in all its substance. Again, in my view, nothing turns on this failing on his part.

Accused 2’s evidence

30. Accused 2 stated that he had sat for his matric exams and thereafter had registered at a college for heavy electrical engineering, but only remained in college for six months. He said he was literate in the English language.

31. He owned a vehicle, a white bakkie, which he used to hire out to people for a fee, as well as to transport goods for people for a fee. Both activities secured an

income for him, which income was necessary for his survival. On 3 October 2012 he hired the vehicle out to Accused 1, who told him that he intended to use it for transporting goods. He had known Accused 1 as someone who worked as a “queue marshall” at the Kagiso taxi rank. After agreeing on a price with Accused 1 for the use of the vehicle, he parted with it at this taxi rank. Accused 1 was to return the vehicle at the same taxi rank later that day but failed to do so. He tried to contact Accused 1 by calling him on his cell phone but found that the call was not answered by Accused 1. As a result he was forced to leave a message for Accused 1 to call him back. The next day he went again to the taxi rank to look for Accused 1. He was told by someone – he cannot recall who – that while driving his vehicle in Florida Accused 1 had been involved in an accident. He was not able to acquire any further information, either about the welfare of Accused 1 or the whereabouts of his vehicle. He continued going to the taxi rank everyday thereafter in the hope that Accused 1 would show up so that he would be able to either get his vehicle returned to him or at least get some information about its whereabouts. This practice continued until 12 November 2012.

32. On 12 November 2012 many police officers in civilian clothes came to his residence carrying rifles. Dlamini was among them. Most of them also wore “balaclavas” to conceal their faces. Dlamini introduced himself and told him that he was under arrest. Dlamini did not inform him of his rights as an arrested person. The police officers searched his room. He was placed in a police vehicle. While sitting in the vehicle, he requested that his “homeboy” (“umfowakithi”) be called and informed that he was being arrested. This “homeboy” is Dube. He also requested that his family be informed of his arrest. Dlamini acceded to his request. Soon after Dube arrived. He gave two accounts of what happened next:

i) Dube was not allowed to converse with him at all and had not conversed with him until they met at court during one of his appearances; and,

ii) Dube spoke to him, but this conversation was restricted to Dube asking the question: “what is happening?” to which he replied: “I have been arrested.” Thereafter Dube left him to in order to converse with Dlamini. He did not converse with Dube at all again until he met Dube at court during one of his appearances.

33. He was driven to Jeppe Police Station where he was detained in isolation. At the entrance of the cells he read the words: “High Security Section”. He was given a document which spelt out his rights as an arrested person, but he did not read it. The next day at about 11h00 he was visited by Dlamini and Nzimande. Dlamini informed him that he was being arrested because his “bakkie” had been used in a robbery at Florida. Dlamini did not inform him of his rights. Dlamini presented him with the SAPS 3M(m) Form. It was already completed by Dlamini and he was asked to sign, which he did. He assumed that he was signing a document in which it was stated that he was the owner of the “bakkie”. He denied making the statement, which he claims was already written on the document when he was taken from his cell. He denied that he informed Dlamini that he was willing to co-operate with the police in the hope that this may secure lenient treatment from the police and the courts. He agreed that he was not threatened or coerced by Dlamini or anyone else into making the statement. The next day he was taken to a magistrate so that his confession could be recorded. However, the magistrate refused to record his confession as he was not accompanied by his legal representative. He was returned to the cell at Jeppe Police Station. He admitted that at his first appearance in court he was represented by a Mr Leisher and not by Dube.

34. Finally, he gave the following account of how he came to know Dube: that they met at the bottle store and they would sit occasionally together on the veranda where they would engage in discussions about women.

Dube’s evidence

35. Dube is admitted as an attorney. On 12 November 2012 he was in the vicinity of the Kathorus (Katlehong, Thokoza, Vosloorus) area

transporting clients when he received a telephone call from a Mr Mbatha (Mbatha). Mbatha informed him that his son was in trouble with the police and asked him to visit the residence of the son and see if he could help. He was given the address of the son, and immediately proceeded to the said residence as he was keen to secure “the brief” to represent Accused 2. Upon his arrival he found many policemen, most of whom were wearing “balaclavas” to conceal their faces. Most of them were also carrying semi-automatic rifles. The one policeman without a firearm, and who also did not conceal his face, was Dlamini. He was able to immediately discern that Dlamini was in charge of whatever operation

the police were conducting. As he got closer he noticed that Accused 2 was seated in a VW Kombi. There was another person standing around and he decided to converse with him, who turned out to be the younger brother of Accused 2. The younger brother pointed out Accused 2 to him and confirmed that Mbatha was their father. At that point he realised that he knew Accused 2 as he had previously met him when Accused 2 saw him transporting cattle. Accused 2 approached him and told him that he (Accused 2) was interested in engaging in farming activities. He himself, whilst being an admitted attorney, also engaged in the “farming of chickens, cattle, sheep and goats”. He also owned a liquor retailing outlet (“a bottle store”) in Thokoza, where he met Accused 2 on some occasions. During one of these conversations, he informed Accused 2 that he was an admitted attorney and supplied Accused 2 with his business card.

36. He approached Dlamini and introduced himself as an attorney practising in Pretoria. He told him he was approached to render legal assistance to Accused 2 and sought permission to speak to Accused 2. Dlamini allowed him to speak to Accused 2. He asked Accused 2 what was happening. Accused 2 informed him that he had just been arrested. He immediately left Accused 2 to speak to Dlamini. He did not speak to Accused 2 again, until they met in court during one of Accused 2’s appearances. Upon confronting Dlamini again, he asked why Accused 2 was arrested. Dlamini refused to give him details, save to say that he would be taking Accused 2 to the Jeppe Police Station, where Accused 2 would be detained. He denied telling Dlamini that Accused 2 was his brother-in-law. Dlamini and the rest of the police officers drove-off in a number of vehicles. Accused 2 was in one of them. He followed them. The vehicles used by the police officers stopped at a petrol station where the policemen wearing “balaclavas” removed them. He approached Dlamini and said to Dlamini that Dlamini should not be alarmed at the fact that he was following them. Dlamini

had no difficulty with him following them. He told Dlamini that he was the legal representative of Accused 2 and that if Dlamini wished to interview Accused 2, he insisted on being present. According to him, the exact words that he used were: “I told him (Dlamini) that don’t you dare cause my client to give a statement without my involvement, without my knowledge." Dlamini did not engage him further on this. They drove-off towards Jeppe Police Station. At Jeppe Police Station he approached Dlamini once again and repeated that he was the appointed legal representative of Accused 2, and that he insisted on being present at any interview that may be conducted with Accused 2. Dlamini, once again, did not engage with him on this topic. By this time it was late in the evening and, as Dlamini had told him that Accused 2 was to be detained, he left. Dlamini refused to allow him to speak to Accused 2 again and told him that he was still investigating the case against Accused 2. He was never able to ascertain what charges were to be brought against Accused 2. He did not consider launching a bail application in order to secure the release of Accused 2. Prior to departing, Mbatha had arrived. He spoke to Mbatha who gave him the mandate to represent Accused 2. Mbatha wanted to see Accused 2, but he told Mbatha that the police would not allow them to see Accused 2. Mbatha did not approach the police nor did he instruct Dube to launch a bail application.

37. During cross-examination he was asked how Mbatha got to know of him. He stated that Mbatha could have got his business card from someone residing in the area. He had supplied his business cards to many people in the hope of securing business. Mbatha, however, was never his client. When he got the call from Mbatha he did not ask any questions nor raise the issue of fees with him. He was most keen on securing the brief and this was all that mattered to him at the time. Mbatha supplied him with the address of Accused 2. He now works for the firm representing Accused 2. He denied ever telling Dlamini that Accused 2 was his brother-in-law. He was particularly pressed on the issue that if he knew that he could well be a witness in the case testifying on behalf of Accused 2, why did he elect to represent Accused 2 for such a long time, and then only relinquish that role when he asked his superior at the firm to take over the representation. He claimed that until the moment came for him to testify there was, in his view, no conflict of interest. He did, however, concede that in hindsight he should have withdrawn as representative a long time ago, and that he should have told Accused 2 to find another representative rather than asking his superior to take over. However he was motivated by his desire “to keep the brief.” He conceded that in all his consultations with Accused 2, Accused 2 did not once complain of any wrongdoing on the part of Dlamini. In particular there was no allegation that Dlamini threatened or assaulted Accused 2. However, from the moment of the arrest he feared that Accused 2 would be “tortured”. He was asked on more than one occasion why, under these circumstances, did he do nothing to secure the rights of Accused 2, such as report Dlamini to his superiors or launch an application in court to secure the release of Accused 2. He said he did not think about it at the time. He also conceded that in the initial stages of Accused 2’s appearances in court Accused 2 was represented by another attorney, Leisher, and not by himself. He was confronted with the fact that during his testimony Accused 2 claimed that he (Accused 2) did not know who contacted Dube to come to his home at the time of his arrest. It was pointed out that this contradicted his version that, when he approached Accused 2 who was seated in a VW Kombi with police officers, he told Accused 2 that Accused 2’s father had asked him to come and assist and that he had responded by saying: “No comment.” Further, when he was alerted to the fact that Accused 2 had signed the statement, he sought instructions from Accused 2 as to its contents and as to the circumstances under which it was signed. Accused 2 had always told him that he (Accused 2) had not signed it at all. He could not explain why this version was different from the one presented to this court by Accused 2. Finally, he was confronted with the fact that Accused 2’s version was that they met at a bottle store and that they would socialise together (“sit together at a veranda”) where they would converse “about women”. He could not explain why Accused 2 would claim this to be so. According to him Accused 2 was not truthful to the court in this regard.

Conclusion regarding the statement of Accused 2

38. As there was no allegation by Accused 2 that he was coerced in any form to make the statement, the only questions before this Court are whether Accused 2’s right to legal representation was denied to him before the statement was taken, and whether Accused 2 actually made the statement. These are factual questions.

39. A crucial fact that is common cause is that Accused 2 did not tell Dlamini or Nzimande that Dube was his legal representative. This is consistent with both accounts he gave as to what transpired between him and Dube at the time of his arrest. On the first account he did not speak to Dube, which means that he could not have appointed Dube as his legal representative. On the second account he spoke to Dube, but this conversation was restricted to Dube enquiring from him as to what was happening and him responding by stating that he was arrested. That was the sum total of the conversation. Dube did not offer his services as a legal representative, nor did Accused 2 ask him to provide such services. After telling Dube that he was arrested, Dube left to speak to Dlamini. The next time he spoke to Dube was at court during one of his appearances. Thus, on both accounts there was no contract concluded between himself and Dube empowering Dube to act as his legal representative.

40. Another important fact is that Dube claimed, that at the time of the arrest, he heard of it while he was busy transporting other clients back to their residence and decided to go and investigate. At that point he had not secured a contract to represent Accused 2. He was contacted by the father of Accused 2 who had asked him to go to the place of the arrest and see if he could help. This is what he had done. Thereafter, his sole concern was, to borrow a phrase from his testimony, “to secure the brief”. He was not sure as to which point during the event was he able to safely conclude that he had secured the brief. – i.e. concluded the contract to represent Accused 2.

41. Dube claimed that he was appointed by Accused 2’s father to represent Accused 2. He was unable to furnish any details of the

conversation with the father, save to say that he was asked to represent Accused 2 which he agreed to do. Upon meeting Accused 2 at the time of the arrest, Dube did not tell Accused 2 that Accused 2’ father had contacted him, and asked him to represent Accused 2. Instead, all he did was ask Accused 2 what happened. Upon being told by Accused 2 that he had been arrested he, without pursuing the conversation any further, immediately moved away and went to speak to Dlamini. He had no further conversation with Accused 2.

42. In these circumstances, I hold that the probabilities favour Dlamini’s version that at the time of the arrest Dube did not tell him that he (Dube) represented Accused 2.

43. There were some serious material differences in the testimonies of Dube and Accused 2. Some of these differences are mutually exclusive.

44. Dube vigorously attempted to show that he and Accused 2 were not friends, had no personal bonds and instead he only had a professional

relationship with Accused 2. It has to be said that he was not very successful in this regard: during his testimony he constantly

referred to Accused 2 by his first name, giving a clear indication that he knew Accused 2 well enough to converse with him on a personal level. The tone and manner in which he gave his evidence indicated that there was great warmth between him and Accused 2. Dube gave a rather cryptic account of how he got to learn of the arrest and how he came to be appointed as the legal representative of Accused 2. He claimed that he was telephoned by Accused 2’s father, but could not give any further details in this regard. He could not explain why, if he was already appointed as the legal representative of Accused 2, he was so anxious “to secure the brief” when he got to the residence of Accused 2 just as Accused 2 had been arrested. Taking these facts into account it must be noted that Accused 2’s version that they were friends is more probable than that of Dube.

45. At the first court appearance of Accused 2, Dube did not represent him, Leisher did. Dube did not even know of the court appearance. If Accused 2 was indeed his client, he should have taken all the steps to ensure that he knew when Accused 2 was to appear in court and to acquire the necessary instructions to apply for Accused 2 to be released upon the payment of a bail bond. It would only be reasonable for Accused 2 to apply for his release, or for Dube to bring the application on the instruction of Accused 2’s father – after all, he was instructed by the father to assist Accused 2.

46. In my view Dube was not candid with this court. In arriving at this conclusion I took note of the fact that he is an officer of this court as well as a member of the Law Society bound by its rules of ethics and for that reason did not come to the conclusion easily. It is a conclusion I have arrived at after taking careful note of the testimonies of Dlamini and Accused 2 and the contradictions in Dube’s own testimony.

47. Returning to Accused 2’s testimony, according to him he did not inform Dlamini or Nzimande or any other police officer who was present during the arrest that he had hired his vehicle to Accused 1 on 3 October 2012 and had not seen it since. Yet he knew from them that they were arresting him because his vehicle was used in a robbery in Florida on the very day he hired it out. His version was that he remained silent about the fact that he hired it out, but when Dlamini presented him with a statement he signed it without reading it and assumed that its contents was about the fact that his vehicle was missing. This version is so devoid of crucial explanatory facts that it cannot, in all probability, be true.

48. Prior to Accused 2 closing his case in this trial within a trial his representative was asked if Accused 2’s father was available

and whether he would be called to testify. The response provided was that Accused 2 had no desire to call him to testify. This is unfortunate, for he could have shed some light on the interaction between himself and Dube. His failure to do so leaves the court with only Dube’s version as to how he came to be appointed as Accused 2’s representative. This version on its own does not bear scrutiny, for it fails to explain why the father did not instruct Dube to launch an application for the immediate release of Accused 2 on bail. Also it does not assist the court in establishing why the father did not ensure that Dube represent Accused 2 at the first court appearance, or for that matter how it came about that Leisher and not Dube represented him at that court appearance.

49. Having regard to all of the above, I have no hesitation in finding that the State has proved beyond reasonable doubt that the statement of Accused 2 was freely and voluntarily made. Thus, the State’s application to have it admitted as evidence was granted.

The third trial within a trial

50. A third trial within a trial was held in order to determine whether a statement made by Accused 3 should be admitted as evidence.

51. Dlamini testified that he received information from his informants that one of the persons involved in the robbery that occurred on 3 October 2012 at the Post Office in the Flora Centre was a person known as Mlenzana. He was further informed that he could find Mlenzana at the Boksburg Prison as he was in custody awaiting trial in another criminal matter. On 26 April 2013 he went to Boksburg Prison to find Mlenzana. He called for him. In response Accused 3 appeared. He spoke to Accused 3 who confirmed that he was known as Mlenzana and informed him that his full name was Bongani Mabena. He informed Accused 3 that he was a policeman who was investigating a robbery at the Flora Centre and that he believed that Accused 3 was one of the participants in that robbery. Accused 3 informed him that he wished to confess his participation in that crime, and that he hoped that by doing so his co-operation would attract favourable treatment from the court.

52. As his rank precluded him from recording a confession, he arranged for a more senior officer with whom he had previously worked, a Captain Yoginderan Soobramoney Naidoo (Naidoo), to record the confession. At about 16h10 he booked Accused 3 out of the prison and took him to Brixton Police Station (Brixton) where he arrived at about 16h45. When he got to Brixton, he took Accused 3 to the office of Naidoo, but Naidoo was busy. He then booked Accused 3 into the cells at Brixton and left. The next morning between 11h00 – 12h00 he returned to Brixton where he found Accused 3 and took him back to Boksburg Prison. Throughout the time that he spent with Accused 3 – while transporting him to and from Brixton – Accused 3 did not complain to him about being assaulted or threatened by anyone to force him to confess. Nor did he report that he had been promised any favours by anyone should he confess to participating in the robbery.

Naidoo’s evidence

53. Naidoo testified that he was a Captain in the SAPS stationed at Brixton. On 26 April 2013, he was asked by Dlamini to assist him by recording a confession of a suspect in a case Dlamini was working on. He agreed to do so. Dlamini came with the suspect at or about 16H45. He was busy at the time and told Dlamini to bring the suspect back later. However, about ten (10) minutes later he sent one of his subordinates to fetch the suspect and Accused 3 was brought to him. He enquired from Accused 3 if Accused 3 was conversant in English and whether he required the presence of an interpreter. Accused 3 categorically stated that he is fully conversant in English and that he did not require the services of an interpreter. Thereafter he introduced himself and explained his rank. He told Accused 3 that he was informed that Accused 3 wanted to confess. Accused 3 confirmed this. He learnt from Accused 3 that Accused 3 had already appointed a legal representative and asked if Accused 3 wanted his legal representative present. Accused 3 responded in the positive. He offered Accused 3 a telephone to call his legal representative. Accused 3 dialled the telephone number and held the receiver to his ear. After a while Accused 3 put the receiver down and told him that the call was not answered. He informed Accused 3 that Accused 3 had a right to a lawyer at the state’s expense and that if he exercised this right a lawyer would be appointed to assist him. Thereafter he asked Accused 3 what he wanted to do. Accused 3 said that he wanted to proceed without his legal representative and that he did not want the State to furnish him with a legal representative. Only then did he commence with recording the statement of Accused 3. He decided to use a pro-forma document to record it. The pro-forma form contains a statement spelling out the constitutional rights of a suspect. He read the statement out to Accused 3 who confirmed that he understood his constitutional rights. Accused 3 also read the part spelling out his rights and thereafter initialled the document alongside that section. Accused 3 supplied him with his name, which is Bongani Mabena. He recorded this. He asked Accused 3 questions to which Accused 3 responded and he recorded the responses on the form. It was clear to him from the way Accused 3 responded to the questions that Accused 3 had no difficulty with the fact that they communicated in the English language only. Accused 3 was relaxed during the entire time. He did not complain that he was threatened by anyone or claim that he was promised any benefits that induced him to confess. However, he specifically asked Accused 3 if he had been assaulted and if so whether such assault played any part in him deciding to confess. Accused 3 answered in the negative. Accused 3 specifically indicated that he had hoped that his confession would in due course be viewed favourably by the court. After completing the form, which included writing the statement Accused 3 made, he read it back to Accused 3 who confirmed that it correctly records what he had said. Accused 3 wrote the words “I have satisfied” on the form and then signed it. Thereafter he, too, signed it.

54. During cross-examination it was put to him that, prior to Accused 3 being brought to him, three policemen suffocated Accused 3 in the cells. He stated that Accused 3 did not inform him of this at the time. He did not notice any signs of suffocation. Instead Accused 3 was relaxed throughout the interview. It was put to him that he spoke harshly towards Accused 3, which caused Accused 3 to be scared of him. This prevented Accused 3 from telling him of the suffocation he endured at the hands of the three policemen.

Accused 3’s evidence

55. In response to the State led evidence of Naidoo, Accused 3 testified that he was a Zimbabwean citizen who had been in South Africa for a few years when he was arrested. He stated that on 26 April 2013 he was booked out of Boksburg Prison by Dlamini and taken to Brixton to attend an Identity Parade (Id parade) the next day, which was a public holiday, and to be interviewed by Naidoo. Upon his arrival at Brixton, he was taken directly to Naidoo’s office by Dlamini. Naidoo was busy with something at the time and asked Dlamini to bring him back later. Dlamini then booked him into the cells in Brixton. A little while later he was taken by another policeman to Naidoo’s office. Prior to being taken to Naidoo’s office he was visited in the cells by three policemen. He was handcuffed behind his back and thereafter a plastic bag was placed over his head making it difficult for him to breathe. This caused him considerable pain, moreso as he suffers from asthma. They told him that unless he agreed that he knew Majola, and that he participated in the robbery of the Post Office at the Flora Centre, they would continue to suffocate him. Thereafter he was taken to Naidoo’s office. He was left alone with Naidoo. The mood in the office was “harsh”. Naidoo was fiddling with his papers and spoke in a loud voice.Naidoo asked him if he had a legal representative and he said ‘yes’. He gave the name of his legal representative, a Mr Ntokozo Buthelezi (Buthelezi), to Naidoo. He agreed that Naidoo provided him with a telephone and offered him the opportunity to call Buthelezi. He dialled Buthelezi’s number but failed to get a response. He confirmed that he did not tell Naidoo of the visit of the three policemen to his cell, and of the fact that he was suffocated by them, as he was afraid of Naidoo. He also confirmed that he agreed to continue with the interview in the absence of Buthelezi. He confirmed that Naidoo read out the contents of the pro-forma form to him and that he read out questions from the form. Naidoo filled in the answers he provided, though he denies that he was fluent in the English language. He claims that he passed Form 2. It was clear during his testimony that he had little difficulty in comprehending English. There were times when he furnished an answer to a question before the interpretation was complete, and on a few occasions he corrected the interpreter thus ensuring that his testimony was properly conveyed to the court. While it was good that he took care to ensure that his testimony was properly conveyed, it has to also be noted that this revealed that he is fluent enough in the English language to have understood the questions posed to him by Naidoo during his interview, and the fact that he furnished answers in English.

56. He admitted that certain questions on the form were read by himself and he personally wrote the answers thereto. Some of the relevant ones are:

“1. Do you understand the warning which I have given you?

Answer: “Yes I do understand”

2. Do you wish to make a statement?

Answer: “Yes I wish to make a statement.”

3. Have you been assaulted or threatened by any person in order to influence you to come and make this statement?

Answer: “No I wasn’t assaulted.”

4. Were you in any way influenced or encouraged by any person to make a statement?

Answer: “No.”

5. Have any promises been made to you by any person if you should make a statement?

Answer: “No promises.”

6. Do you expect any benefits if you make a statement?

Answer: “Court feel pity.”

57. However, on the basis of his claim that he was suffocated he contends that the statement recorded by Naidoo was not freely and voluntarily made.

Conclusion on the statement of Accused 3

58. One of the problems with his contention is that he only complained of being suffocated when it was raised for the first time during this trial. He had numerous opportunities prior to that to raise it but failed to do so. He does not deny that these opportunities were there. The very first time he had this opportunity was before the statement was taken down by Naidoo. He was alone with Naidoo in the office and was asked if he was threatened by anyone to which he replied, “No”. He was supplied with a telephone by Naidoo to call his legal representative, Buthelezi, and when Buthelezi failed to answer his call he could have stated that he did not want to continue without Buthelezi’s presence or at least not until he had spoken to Buthelezi. He appeared in the magistrates’ court sometime after that where he was legally represented. He claims that he told Buthelezi of the assault but Buthelezi told him that he must tell the court. He therefore waited for this hearing to tell this court. He cannot explain why Buthelezi did not place this on record at the magistrates’ court. However, he does not deny that neither Naidoo nor Dlamini threatened or assaulted him. He does not deny that he read the questions posed on the pro-forma form and in his own words wrote some of the answers, especially those quoted above in the previous paragraph.

59. Taking all these facts into account, I have no hesitation in finding that the statement was freely and voluntarily made and is therefore

admitted as evidence in the main trial.

60. Before closing on this subject it bears mentioning that all three accused were very poor witnesses. They were not able to answer simple questions. They constantly sought refuge in loss of memory as to what transpired in order to avoid having to answer to the fact that their evidence was inconsistent with the established facts, or with each other’s testimony. All three of their testimonies were completely lacking in credence. The same applies to the testimony of Dube who testified on behalf of Accused 2. However, the decision to admit the statements was based largely on the fact that the probabilities in each case favoured the State’s version, and not those of the accused or Dube.

61. The statement of Accused 3 reads:

“ 1.

Last year sometime, I am not sure of the date or the month, at the time I was a taxi driver for Mr Mthoko driving the line of MTN town to Alexandra. I received a call from a Mr Majola one of my friends who used to support my food business and then arranged the taxi driving job for me. He wanted to see me urgently at Faraday Taxi Rank. I then drove the taxi I was driving a white quantum Toyota taxi to Majola.

2.

Majola was alone and he told me that he and some other guys have a job to do and they need a transport. He did not tell me what kind of job it was. I agreed to take him and he said he will direct me. He then called his friends who were not far from where we were. Majola’s five friends then jumped into my taxi. I do not know Majola’s friends and they did not look familiar to me. Majola jumped into a Hilux bakkie and told me to follow.

3.

We then drove towards Krugersdorp, Florida. I followed him all the way until we got to a shopping mall whereby Majola indicated to me to stop. I stopped next to the robot. One of my occupants in my taxi then received a call from Majola and they all jumped out and walked towards the mall. Majola then indicated to me to follow him. He then drove to a place a little further away from the mall and told me to park there and wait for his friends. Majola then drove towards the mall.

4.

I then waited for about 15 to 20 minutes and then I saw Majola coming with the bakkie towards me. His friends were all at the back of the bakkie. When they reached the quantum his friends jumped out and jumped into the taxi. I saw one of them having a bag of money in his hands and also saw a gun. Majola drove off after dropping of his friends. I was then told to drive back to Faraday Taxi Rank.

5.

As I was taking off I heard gun shots. I saw that Majola was shooting at a traffic officer. His friends wanted me to stop, but I just drove till I reached the taxi rank. When we got to the taxi rank, they gave me R1800-00 and left. I then continued with my normal taxi duties. I never heard from Majola again or saw him or his friends. I was then arrested this year. That is all I know and can say about my involvement.”

The case on the merits

62. The State called numerous witnesses: The key ones were Charmaine Marais (Marais), Ernest Brandon (Brandon), Ntando Eugela (Eugela), Raechel Herbert (Herbert), David Mawela Takalani (Takalani), Sergeant Johannes Albertus Rothman (Rothman), Constable Deon Mongwe (Mongwe) and Dlamini.

The evidence of Marais

63. Marais testified that about lunch-time on 3 October 2012 at the Post Office in the Flora Centre where she is employed as branch manager a robbery took place. On the previous day she had been alerted to a suspicious-looking male who wore a white cap and walked with a limp. That same man was one of the perpetrators. At the commencement of the robbery, she heard a colleague scream and run towards the toilets at the back. Before she could do anything, a male came to her and said "Open there". He gave her a small black plastic bag and said "Put it in here." She thought she saw a firearm in his hand but cannot be sure. There were a number of perpetrators in the Post Office, but she could not say how many they were. She did not look any of them in the face. The perpetrators took approximately R40 000.00 and left. After they left she heard gun shots. She would not be able to identify any of the perpetrators.

The evidence of Brandon

64. Brandon is a teller at the Post Office where the robbery took place. He was at the back of the Post Office at the time and heard gun shots. He came to the front to investigate. He saw the perpetrators making their exit. He decided to follow them in order to ascertain how many they were. At the exit of the Centre he saw three (3) of the perpetrators climb into the back of a white bakkie which drove-off at a high speed. After a few minutes a call was received by one of his colleagues who was told that there had been a road accident involving a white bakkie not far from the Centre, and that someone from the Post Office should come there. He went. Upon his arrival, he realised that the white bakkie was the same one that was used by the perpetrators to escape after committing the robbery. He would not be able to identify any of the perpetrators.

The evidence of Eugela

65. Eugela is a security manager at the Flora Centre. On 3 October 2012 he got a call from someone working in the Post Office and was told that it had just been robbed. He rushed to the Post Office. On his way there he saw three (3) people come out of the Post Office. He noticed one of them had a black bag in his hand. One of them pulled out a gun from the front of his pants. He looked carefully at that one. Their eyes met. That man discharged his gun. He took cover. The three men exited the Centre. He followed them and saw them climb into a white bakkie. Later he heard more gunshots coming from outside the Flora Centre. He did not go and investigate. On 27 September 2013 an Id parade was held where he was asked to attend and identify the person he saw discharge the firearm in the Centre on 3 October 2012. He identified Accused 2 as being that person. He was absolutely sure about that.

The evidence of Herbert

66. Herbert lives close by the Centre. On 3 October 2012 at about 14h00 while relaxing on his veranda he heard a single gunshot followed by a series of gunshots indicating that it was an automatic rifle that was being used. He went to investigate. About three (3) houses away from his he saw a white bakkie on the pavement facing a tree. As he got nearer he saw a policeman lying next to a motorbike. When he passed the bakkie he noticed that the side window was broken and a man was lying on the front seat with his eyes closed. It appeared that the man was shot. He shouted, asking if the man was all right, and saw that the man’s eye-lids moved. He looked carefully at the man and noticed that there was an automatic rifle lying on his lap. He immediately went to the policeman to see if he could be of any assistance. An ambulance and more policemen arrived. Suddenly the bakkie moved away. Thereafter he lost sight of the bakkie. He would not be able to identify the driver of the bakkie.

The evidence of Takalani

67. Takalani testified that he was employed as a taxi driver. On 3 October 2012 he was driving his taxi down Ontdekkers Road towards Westgate, just after 14h00. While approaching a traffic light controlled intersection with Gordon Road a white bakkie, which was required by a red traffic light to stop, appeared at high speed and collided with his taxi. The bakkie continued to move and was in the process of escaping, but then came to a halt. One of the tyres of the bakkie was flat. He alighted from his taxi and went to confront the driver of the bakkie. When he reached the bakkie he noticed that the driver was the only person inside and that he appeared to be hurt. He saw blood oozing from the head of the driver. He tried to speak to the driver but received no response. He saw a firearm on the lap of the driver and got a fright. He immediately retreated to his taxi. A few seconds thereafter the bakkie moved a bit but did not go far before it collided into a wall. The damage to his taxi cost R150 000.00 to repair. Fortunately neither he nor any of his passengers were injured by the collision. After crashing into the wall, the driver of the bakkie alighted. He had the firearm in his hand. The firearm fell out of his hand and he fell down. An ambulance had arrived and the ambulance personnel went to treat the driver. Takalani identified the driver of the bakkie as being Accused 1 in the dock.

The evidence of Rothman

68. Rothman is a Sergeant with the SAPS. On 3 October 2012 he was summoned to a crime scene in Florida. He got to the scene at about 15h30. He found the scene cordoned off by the police and a white bakkie inside the cordon. He took photographs of the scene, including the bakkie. The inside of the bakkie was blood-ridden. There was money, two cell phones both of which had blood on them, a white cap, a cell phone charger and cash inside the bakkie. There was a R5 rifle lying outside the driver’s door. He saw a bullet hole in the back window of the bakkie and in the driver’s seat headrest. From this he conjectured that the drivers had been shot in the back of his head.

The evidence of Mongwe

69. Mongwe is a constable in the SAPS. On 3 October 2012 at about 14h30 he was driving in the vicinity of the Centre when hereceived a radio report to the effect that a robbery had just taken place at the Flora Centre. The call had alerted him to be on the lookout for a white bakkie that was travelling in the area. He saw a white bakkie travelling fast. He gave way for it to pass and immediately saw a policeman on a motorbike giving chase. Soon after this the policeman fell from the motorbike. The bakkie had turned a corner. He went in search of the bakkie and saw that it had collided with a taxi. He pursued it and within a minute or two it came to a halt after knocking into a wall. He saw the driver of the bakkie get out with an R5 rifle in his hand. The driver tried to run but staggered and fell to the ground. The R5 rifle fell beside him. He got to the driver and arrested him. The driver was conscious. He informed the driver of his rights in isi-Zulu. The paramedics arrived and transported the driver to the Helen Joseph hospital under police guard. He looked inside the bakkie and found a Capitec bank debit card in the name of Bongi Nkosi Khumalo (Accused 2), a drivers licence in the name of Accused 2, ammunition for the R5 rifle on the seat which he counted to be 27, spent cartridges inside the bakkie, two (2) cell phones and money which had blood all over it. He cordoned off the scene.

70. All the above witnesses were cross-examined by all three Accused. This cross-examination did not discredit any of their evidence or diminish its probative value.

The evidence of Dlamini

71. Dlamini presented hearsay evidence concerning information he received as to the cell phone number used by Accused 3 and the name by which Accused 3 is known.

72. Dlamini testified that he was furnished with the cell phone number of Accused 3 and told that Accused 3 is known as Mlenzana. The persons that told him this are Mr Eddie (Eddie), a Mr Prince (Prince) and Accused 2. The cell phone number is 083 4046958. As for the name Mlenzana, Dlamini referred to Accused 3 by this name each time he dealt with him and Accused 3 had no problem with this. In fact, Accused 3 always responded to this name. Regarding the sources of his information he stated that he did not know the full name of Eddie or of Prince. He could not even say if those are their correct names. Both of them were informers for him and he only knew them as Eddie and Prince. Eddie was subsequently arrested for allegedly having committed some offence. He last spoke to Eddie while Eddie was in custody. Once this trial commenced he visited the prison in order to discuss this case with Eddie. He subsequently learnt that Eddie had passed on, but he had been unable to confirm whether this was true or not. Nevertheless, he had not been able to make any contact with Eddie. As for Prince, he spoke to Prince recently and asked him to come and testify in this case, but Prince refused citing a fear for his life should he do so. Prince was from Zimbabwe and had since left for Zimbabwe, or so he had learnt. He fully understood Prince’s reluctance to testify and would not support any efforts to compel Prince to do so. In fact, he was in some respects supportive of Prince’s decision, as it was integral to the relationship he had with all his informers that he protected their confidence and their identities. If he was unable to do so, he would soon find himself without any informers and his investigative work would suffer irreparable harm.

73. As for Accused 2, he was told by Accused 2 on the day after his arrest and during the interview he had with him, that the number 083 404 6958, was being used by Accused 3. During the interview he asked Accused 2 to call Accused 3 on that number, which he did. But the call was not answered. More than one call was made to that number by Accused 2 at that time but none of them elicited a response. Dlamini, however, was only present when the first call was made. He instructed Accused 2 to make the call as he was looking for Accused 3, and had hoped to find out his whereabouts through the conversation between Accused 2 and 3.

74. The State also led evidence of records of the cellphone company which reflect the usage of the cellphone number of Accused 2 to support Dlamini’s evidence that the calls were made from Accused 2’s cell phone while Accused 2 was in custody and being interviewed by Dlamini. This evidence supports the version of Dlamini that Accused 2’s phone was used to call the number that allegedly belongs to Accused 3 (i.e. 083 404 6958).

75. The State also presented evidence of the cell phone records of what it alleged were the cell phone numbers owned, used or possessed by Accused 1 and 2, as well as that which it claimed belonged to or was used by Accused 3. The only aspect of the evidence that was challenged was that concerning ownership, usage or possession of the cell phones containing the SIM cards bearing the relevant numbers. The relevant numbers and their alleged users or owners are:

Telephone number Owner/possessor/user 082 809 0809 Accused 1 Found in the bakkie at the scene when Accused 1 was arrested 083 994 2285 Accused 1 Found in the bakkie at the scene when Accused 1 was arrested 072 869 0716 Accused 2 Admits that the number belongs to him 082 586 6989 Accused 1 Admits that the number belongs to him 078 371 2920 Accused 2 Admits that the number belongs to him 083 404 6958 Accused 3 Denies he owned, possessed or used this number

76. On 1 October 2012, two days before the robbery and murder took place, the alleged communication between the three accused is reflected in the record of Accused 2’s number as:

1 October 2012

Time Number of caller and where call was made from if caller was Accused 2 Number of receiver and where Accused 2 was if he was recipient Length of call in seconds 8:22:30 083 404 6958 (Acc 3) 072 869 0716 (Acc 2) Thabo Ntsako 56 12:01:39 072 869 0716 (Acc 2) Jeppe St 083 404 6958 (Acc 3) 13 14:00:44 072 869 0716 (Acc 2) Mint Rd 083 404 6958 (Acc 3) 13 14:05:29 083 404 6958 (Acc 3) 072 869 0716 (Acc 2) Newtown 17 14:07:26 072 869 0716 (Acc 2) Newtown St 083 404 6958 (Acc 3) 18 14:10:26 072 869 0716 (Acc 2) Mint Rd 083 404 6958 (Acc 3) 21 15:03:14 083 404 6958 (Acc 3) 072 869 0716 (Acc 2) Kerk St 35 15:11:50 072 869 0716 (Acc 2) Kerk St 083 994 2285 (Acc 1) 71 17:14:28 083 994 2285 (Acc 1) 072 869 0716 (Acc 2) Doornfontein 17 17:39:33 083 994 2285 (Acc 1) 072 869 0716 (Acc 2) Risana 30 20:11:23 083 994 2285 (Acc 1) 072 869 0716 (Acc 2) Thabo Ntsako 54 21:02:15 083 994 2285 (Acc 1) 072 869 0716 (Acc 2) Thabo Ntsako 196

77. Relying on this record, the State alleges that Accused 2 and Accused 3 communicated with each other on seven (7) occasions on 1 October 2012 between the times 08:11:30 and 15:03:14 while Accused 1 and Accused 2 were in communication on five (5) occasions between the times 15:11:50 and 21:02:15 and some of these calls were lengthy. When questioned as to who he communicated with at that time, if it was not Accused 3, Accused 2 claimed that he cannot remember who it was.

78. On 2 October 2012, one day before the robbery and murder took place, the alleged communication between the three accused is reflected in the record of Accused 2’s number as:

2 October 2012

Time Number of caller and where call was made from if caller was Accused 2 Number of receiver and where Accused 2 if he was recipient Length of call in seconds 8:15:33 083 994 2285 (Acc1) 072 869 0716 (Acc 2) Mayberry Park 32 10:12:35 072 869 0716 (Acc 2) Jeppe St 083 404 6958 (Acc 3) 2 10:13:22 072 869 0716 (Acc 2) Wolhuter St 083 404 6958 (Acc 3) 49 10:14:38 083 404 6958 (Acc 3) 082 869 0716 (Acc 2) Hartland Rd 34 10:15: 42 072 869 0716 (Acc 2) Fox St 083 994 2285 (Acc 1) 14 10:27:17 072 869 0716 (Acc 2) Noord St 083 404 6958 (Acc 3) 28 10:45:45 083 404 6958 (Acc 3) 072 869 0716 (Acc 2) Noord St 25 10:47:40 083 404 6958 (Acc 3) 072 869 0716 (Acc 2) Noord St 26 11:36:50 083 404 6958 (Acc 3) 072 869 0716 (Acc 2) Noord St SMS 12:09:24 072 869 0716 (Acc 2) Plein St 083 404 6958 (Acc 3) 38 19:22:20 083 404 6958 (Acc 3) 072 869 0716 (Acc 2) Noord St 24 19:38:18 072 869 0716 (Acc 2) Thabo Ntsako 083 404 6958 (Acc 3) 38 19:42:10 083 404 6958 (Acc 3) 072 869 0716 (Acc 2) Sali Section 37

79. The State claims that this portion of the record shows that Accused 2 and Accused 3 communicated with each other on eleven (11) occasions on 2 October 2012 between the times 08:15:33 and 19:42:10 while Accused 1 and Accused 2 were in communication on two (2) occasions between those times. Again, when questioned as to who he communicated with at that time, if it was not Accused 3, Accused 2 claimed that he cannot remember who it was.

80. On 3 October 2012, the day the robbery and murder took place, the alleged communication between the three accused is reflected in the record of Accused 2 number as:

3 October 2012

Time Number of caller and where call was made from if caller was Accused 2 Number of receiver and where Accused 2 if he was recipient Length of call in seconds 12:02:43 083 404 6958 (Acc 3) 072 869 0716 (Acc 2) Jeppe 16 12:14:22 083 994 2285 (Acc 1) 072 869 0716 (Acc 2) Jeppe 10 12:22:16 083 404 6958 (Acc 3) 072 869 0716 (Acc 2) Jeppe 40 12:25:37 072 869 0716 (Acc 2) Flora Centre 083 404 6958 (Acc 3) 10 13:37:19 072 869 0716 (Acc 2) Flora Centre 083 404 6958 (Acc 3) 2 13:41:10 072 869 0716 (Acc 2) Flora Centre 083 404 6958 (Acc 3) 14 16:39:13 083 404 6958 (Acc 3) 072 869 0716 (Acc 2) Jeppe 24 22:29:50 083 404 6958 (Acc 3) 072 869 0716 (Acc 2) Jeppe 34

81. If the State’s contentions as to ownership, possession or usage are correct, this record shows that on the day of the robbery between 12:02:43 and 13:41:10 there was six (6) calls between Accused 2 and 3 and one (1) call between Accused 1 and 2. Two of those calls occurred while Accused 2 was in Flora Centre, which, as we know, is where the robbery took place. They occurred at 13:37:19 and 13:41:10.The robbery took place at or around 13H45. Regarding the calls made by the number belonging to Accused 2 to the number allegedly belonging to Accused 3, Accused 2 claimed that his phone was in his bakkie which was in the possession of Accused 1, while he was in central Johannesburg. Importantly, this time he did not claim that he did not know who he called. Previously, in relation to the alleged telephone number of Accused 3, Accused 2 admitted to having made the calls or having received the calls from that number but claimed that he could not recall who he called or who called him.

82. Dlamini testified that after the robbery Accused 2 called Accused 3 or received calls from Accused 3, but this time he used the number 078 371 2920 and not the number 072 869 0716. According to Dlamini he contacted Accused 2 on the 072 869 0716 number sometime after the robbery and arranged for Accused 2 to visit the police station to collect his motor vehicle. Accused 2 agreed to do so, but failed to turn up at the appointed time. Thereafter Accused 2 began using the 078 371 2920 number and not the 072 869 0716 number. He stated that each time he called the 072 869 0716 number he found that it had been switched-off. He only discovered that Accused 2 began using the 078 371 2920 number after he arrested Accused 2 on 12 November 2012 when he found Accused 2 having a cell phone with a SIM card bearing this number. Accused 2 admitted that this was one of the numbers he used.

83. Having secured the records of the usage of the 078 371 2920 number the State alleges that Accused 2 called or received calls from Accused 3 on the following occasions:

4 October 2012

Time Number of caller Number of receiver Length of call in seconds 12:31:05 078371 2920 (Acc2) 083404 6958 (Acc3) 16

This was the day after the robbery. Then on 12 November 2012 Accused 2 was arrested. He was interviewed on 13 November 2012. During this interview he told Dlamini that Accused 3’s number is 083 404 6958. The number was stored on his handset. In the presence and on the instruction ofDlamini he used the same handset to dial the number, but there was no response. The record shows for that day the following:

13 November 2012

Time Number of caller Number of receiver Length of call in seconds 04:17:59pm 078 371 2920 (Acc 2) 083 404 6958 (Acc 3) 11 04:23:03pm 078 371 2920 (Acc 2) 083 404 6958 (Acc 3) 11 04:38:37pm 078 371 2920 (Acc 2) 083 404 6958 (Acc 3) 65 04:40:59pm 083 404 6958 (Acc 3) 078 371 2920 (Acc 2) 25 04:45:59pm 083 404 6958 (Acc 3) 078 371 2920 (Acc 2) 79

The last two calls were made by Accused 3 to Accused 2. According to Dlamini, he cannot say if they spoke during calls 2, 3, 4 and 5 as he had left the room by then. He only remained in the room when the first call was made.

84. The importance of the usage records of the number 078 371 2920 is evidence that confirms Dlamini’s testimony that he instructed

Accused 2 to call Accused 3, and that this was done while Accused 2 was in his presence. As concerns the name Mlenzana, Dlamini’s

testimony that this is the name by which he called Accused 3 when visiting the Boksburg Prison and when addressing him thereafter, was denied by Accused 3 during his cross-examination of Dlamini. The issue concerning its veracity is dealt with later.

The admission of the hearsay evidence

85. At the close of the State’s case it applied to have certain hearsay evidence admitted. The hearsay evidence concerned Accused 2 and 3. The application was brought in terms of s 3 of the Law of Evidence Amendment Act 45 of 1988 (the LEAA). The application was opposed by both Accused 2 and 3.

86. Accused 3 opposed the application. This was on the basis that the hearsay evidence was damning of him without him being given an opportunity to challenge it by cross-examining the persons from whom the information was sourced, i.e. Eddie, Prince and Accused 2. However, before deciding the issue we were informed by Mr Tlasi, representing Accused 2, that Accused 2 would most certainly be testifying in the main trial. Thereafter, argument for and against the reception of the said evidence was presented. After hearing argument, I decided that the hearsay received from Accused 2 was temporarily admitted as evidence, but that received from Eddie and Prince was not admitted.

87. In my view, the facts and circumstances of the case dictated this to be the only just and fair way to approach the matter. The evidence of Dlamini that he received the information about the number 083 404 6958 from Accused 2 was supported by the evidence of the records of the calls made from the phone of Accused 2 after his arrest, and during the time he was in the presenceof Dlamini.

88. The decision to admit the evidence was taken in terms of s 3 of the LEAA. The relevant portions of s 3 of the LEAA reads:

“(1) Subject to the provision of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless-

...

(b) the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or,

(c) the court having regard to-

(i) the nature of the proceedings;

(ii) the nature of the evidence;

(iii) the purpose for which the evidence is tendered;

(iv) the probative value of the evidence;

(v) the reason why the evidence is not given by the personupon whose credibility the probative value of such evidence depends;

(vi) any prejudice to a party which the admission of such evidence might entail;

(vii) any other factor which should in the opinion of the court be taken into account,

Is of the opinion that such evidence should be admitted in the interests of justice.

(2) The provisions of subsection (1) shall not render admissible any evidence which is inadmissible on any ground other than that such evidence is hearsay evidence.

(3) Hearsay evidence may be provisionally admitted in terms of subsection 1(b) if the court is informed that the person upon whose credibility the probative value of such evidence depends, will himself testify in such proceedings: Provided that if such person does not later testify in such proceedings, the hearsay evidence shall be left out of account unless the hearsay evidence is admitted in terms of paragraph (a) of subsection 1 or is admitted by the court in terms of paragraph (c) of that subsection.”

89. Having regard to these subsections, it is my view that in the light of the fact that I was informed that Accused 2 would be testifying it would be appropriate to admit the hearsay evidence temporarily. Accused 3, with vociferous support from the attorney of Accused 2, contended that it was irregular and unlawful for this court to temporarily admit the evidence. In support of this contention they relied upon the judgment of the CC in Molimi.[9] In that case, the CC, per Nkabinde J, endorsed the finding of the SCA in S v Ndhlovu and Others[10] which held that:

“...(1) the reception of the hearsay evidence must not surprise the accused; (2) the reception should not come at the end of the trial when the accused is unable to deal with it; and (3) that the accused must understand the full evidentiary ambit of the case against him or her.”[11]

90. According to Accused 3 it was not open to this court to temporarily admit the hearsay as it would result in him not being made aware of what case he should meet. I do not read Molimi to be saying that the temporary admission of hearsay is prohibited at all times. This cannot be, for the simple reason that section 3(3) of the LEAA certainly allows for such evidence to be provisionally admitted. What Molimi and Ndhlovu warned against is the fact that the temporary admission left the accused in an uncertain stage right up to end of the trial. The

accused must at least know before s/he considers whether to testify or not whether the evidence has been finally admitted. This is particularly so if the person upon whose credibility the probative value of such evidence lay had not testified before the accused was required to elect whether to testify or not. The importance of this to the accused is obvious. The accused needs to know if it is finally admitted so that s/he can decide how to structure her/his evidence in order to meet the case made by the State. The case would be significantly different if hearsay evidence is admitted than if it is not. This, however, does not mean that the evidence cannot be temporarily admitted. The finding of the CC in Molimi does not detract from this. The CC did not in Molimi declare s 3(3) to be unconstitutional for violating the right of an accused to a fair trial. In Ndlovhu the SCA found that:

“The provisional admission of hearsay in the situation the statute envisages is procedurally unexceptionable and its practical value in rendering court proceedings coherent should not be underestimated.”[12]

The CC did not disagree with this. All it did was endorse what Ndlovhu held which is that:

“... an accused cannot be ambushed by the late or unheralded admission of hearsay evidence. The trial court must be asked clearly and timeously to consider and rule on its admissibility. This cannot be done for the first time at that end of the trial, nor in argument, still less in the court’s judgment, nor on appeal. The prosecution before closing its case, must clearly signal its intention to invoke the provisions of the Act, and before the State closes its case, the trial Judge must rule on the admissibility, so that the accused can appreciate the full evidentiary ambit he or she faces.”[13]

91. Thus, in my view, the submission of Accused 3 that the provisional admission of the hearsay is disallowed and that the court must decide to admit it finally, is not supported by the finding in Molimi. In this case the State made it patently clear that it would be relying on the hearsay evidence of Dlamini and asked the court to provisionally admit it in terms of s 3(1)(b) read with s 3(3) of the LEAA. After closing its case, it asked the court to finally rule on the admissibility in terms of s 3(1)(c). The approach adopted by the State was correct.

92. In our case, the declarant of the statements, Accused 2, testified. He disavowed the statements. Accused 3 was given a full opportunity to cross-examine him. Accused 2’s disavowal was not persuasive. He was not able to explain who he called so many times if it was not Accused 3. His explanation that he did not make the call during the interview was also unconvincing. After Accused 2 testified and closed his case, I made it clear to Accused 3 that the hearsay evidence of Dlamini regarding the name by which he was known and his cell phone number was finally admitted. This was done to ensure that Accused 3 was not left in a state of uncertainty as to whether the evidence would be taken into account by the court or not. The approach adopted is, in my view, consistent with the findings in Molimi and Ndlovhu. The approach adopted was designed to ensure that Accused 3 was made aware of “the full evidentiary ambit he faces,” before he was required to present the testimony he relied upon to meet the case of the State.

The relevance of the evidence

93. The case against Accused 3 is based on the evidence of the cell phone records and on his statement. Firstly, on the cell phone it is the finding of this court that Accused 3 was the holder and user of the number 083 404 6958. Though he denied this, his denial must be examined in the light of all the facts presented. The evidence that it was supplied to Dlamini by Accused 2 was not in any way discredited. In fact, it was supported by objective and incontrovertible evidence of the cell phone records of Accused 2’s number, in particular the number 078 371 2920.

94. Dlamini’s evidence that Accused 3 is known as Mlenzana had also not been discredited in any meaningful way. Dlamini stated that he was told that Accused 3 is known as Mlenzana, and that in his dealings with Accused 3 he referred to Accused 3 as Mlenzana and Accused 3 did not object, nor did he fail to respond each time he was referred to by this name.

95. While Accused 3 sought to have the hearsay aspect of this evidence declared inadmissible, he was unable to deal with the aspect that Dlamini in his (Dlamini’s) interactions with him, referred to him as Mlenzana and he always responded to this name. The failure of Accused 3 to testify means that this evidence is uncontroverted. In the result, I find that Accused 3 was the user, or the possessor and user, of the number 083 404 6958 and that he was known by the name Mlenzana.

The case against Accused 3

96. The cell phone records of the numbers used by Accused 2 and this number (083 404 6958) demonstrate that there was extensive communication

between the Accused prior to the robbery, during the robbery and even after the robbery. Accused 2 was unable to explain why he made so many calls to Accused 3. His version that he cannot recall who he called was disingenuous. Not only did he make numerous calls to Accused 3 prior to and during the robbery, he also made three calls to Accused 3 while he was in custody and while he was in the presence of the police. His version that he did not know Accused 3 was, therefore, contrived, as was his denial that he gave the 083 404 6958 number to Dlamini.

97. The statement of Accused 3 indicates in no uncertain terms that he agreed to transport Accused 1 and Accused 1’s friends in a Quantum to the Flora Centre and waited for them while they went inside. About 20 minutes later, they came back and Accused 1, while driving the bakkie, got involved in a shoot-out with the deceased. He saw some of the persons he transported having guns and a black bag containing money. He drove them away and was paid R1 800-00 for his role as the driver of the Quantum. This then is the case made out against Accused 3.

The versions of the Accused

Accused 1

98. Accused 1 testified that he was walking in Florida in the vicinity of the Centre on 3 October 2012 during lunch time in order to meet with his girlfriend, who is since deceased. While walking he heard people screaming and saw them running. Before he could realise what was happening he got shot in the back of his head. He collapsed and lost consciousness. He only regained consciousness when he awoke in Leratong. He does not know Accused 2 or 3. He did not borrow the bakkie of Accused 2 for that day. He was definitely not driving the bakkie of Accused 2 as he cannot drive. Neither Accused 2 nor 3 know where he works or lives. He did not give a statement to Dlamini on 4 October 2012 as he was unconscious at the time. He did not own, possess or use the cell phones found in the bakkie at the time of the accident.

99. In the light of all the evidence presented by the State his version is incredulous. He was faced with irrefutable evidence that he was caught red-handed, and the way he chose to deal with this was by claiming that he lost consciousness and has no recollection of what happened. However, he was unable to deal with the evidence of the State that he was arrested after he came out of the bakkie or that Accused 2 claimed that he had possession of the bakkie. That the bakkie was used in the robbery, and that the person who drove it was shot through the back window of the bakkie in the left of his head, remained unrefuted. Accused 1 was unable to explain how it was that the person who was shot in the back of the head and who drove the bakkie into a wall suffered the same injury as himself who, according to him, happened to be walking by at the time. His claim that he lost consciousness until he awoke in Leratong was contradicted by the written record of Helen Joseph Hospital which states: “conscious with history of gun shot on head.” Upon being shot he was immediately taken to Helen Joseph and only after he was stabilised was he transferred to Leratong. Hence, he was conscious from the moment he was admitted to hospital which was immediately after he was shot. While claiming not to know Accused 2, he could not explain why the cell phone having a SIM card bearing the number found in his possession at the time of his arrest was used to contact the number used by Accused 2.

100. I have no doubt that his entire version was nothing short of an expressio falsi.

Accused 2

101. Accused 2’s version is that he was approached by Accused 1 on 3 October 2012. Accused 1 requested that he lend him his bakkie as Accused 1 wanted to transport goods. He agreed to do so. He knew Accused 1 as someone who worked at a Taxi Rank, but would on occasion meet him at a car wash. He agreed to lend the bakkie to Accused 1 who had promised to bring it back that same afternoon. When, by the next day, his bakkie was not returned, he first went by himself and then with his father to look for Accused 1 at the Kagiso Taxi Rank. There he met one of the taxi drivers, whose identity he is unaware of, who told him that he had heard that Accused 1 was involved in an accident the day before. He was not given any details of the accident. He left the Taxi Rank thereafter. He made no further enquires about Accused 1 or about his bakkie. He just waited for his bakkie to be returned by Accused 1. Only when he was arrested on 12 November 2012, which was five weeks later, had he learned that his bakkie was used in a robbery and that it was held by the police ever since. He claimed further that when Accused 1 took the bakkie he had left his cell phone in the bakkie. That cell phone was returned to him later that day by an unknown person who told him that Accused 3 had asked him (the unknown person) to give the cell phone to him. He was told that his bakkie would be returned the next day. He cannot recall at what

time the cell phone was returned to him just that it was before sunset.

102. He denied knowing Accused 3 until they first appeared together in court on the present indictment. He denied giving Dlamini a statement as well as informing Dlamini that Accused 3 is known as Mlenzana and that Accused 3’s cell phone number was 083 404 658.

103. At first he denied leaving Johannesburg after the robbery, but later, when confronted with the evidence of the record of his cell phone, he admitted to having left for Kwazulu-Natal where he attended a traditional ceremony which took place over a few days. He denied this trip was taken in the quest to evade arrest.

104. He claimed that his bakkie was his only source of income. He used it to transport goods on behalf of clients and he hired it out for a fee. He did not agree on a price with Accused 1 when he lent it to him on 3 October 2012.

105. He dealt with the identification of him by Eugela as one of the perpetrators as they left the Flora Centre, and the person who had

discharged the firearm he was holding, by obliquely claiming that he was seen by many people before the Id parade commenced. The approach adopted by him failed to diminish the value of Eugela’s evidence, which included the pointing out at the Id parade.

106. Accused 2 was unable to explain why, if he was dependent on his bakkie for earning a living, he lent it to Accused 1 rather than hiring it out to him. Furthermore, he did not explain why he made no attempt to retrieve it since being taken by Accused 1 on 3rd October 2012. His attempt to explain away the usage of his cell number while it was in the vicinity of the Flora Centre at the time of the robbery did not make sense. He could not explain why only his cell phone but not his bankcard or his driver’s licence was returned to him by the unknown person. He also could not say at what time this was returned to him. His explanation as to why he telephoned the number of Accused 3 so many times on the 1st and 2nd October 2012 was a simple “I cannot remember”. He also could not explain who it was that he called, if it was not Accused 3. It is noteworthy that this was not just one isolated call. It was many calls, and more importantly,these were to the same number that was called from his number at the time the robbery was in progress. He could not explain why he was calling the same number at the time that the robbery was in progress.

107. Like Accused 1, Accused 2, too, gave a version that was not reasonably possibly true, and in my view it was nothing but an expressio falsi.

Accused 3

108. Accused 3 elected not to testify. So, apart from challenging the evidence of the State through the cross-examination of Dlamini and any other relevant witness(es) he failed to controvert the evidence against him.

109. The statement of Accused 3 and the evidence of the cell phone records of the numbers used by Accused 2 indicate, without any doubt, that Accused 3 was involved in the robbery. He was called on numerous occasions by Accused 2 on the 1st, 2nd and 3rd October 2012 prior to the robbery. On the 3rd October, according to the statement, he was at the Flora Centre waiting in the Quantum while the persons he transported, as well as Accused 1, went to conduct the robbery. According to the cell phone records, during this time he called or received calls from Accused 2, who was one of the perpetrators with a firearm which was discharged inthe Flora Centre in order to ensure that the perpetrators received no resistance from anyone. Accused 3’s failure to deal with this evidence means that in these circumstances the only inference that can be drawn is that he was party to the robbery, and that his involvement commenced, at the very least, from 1 October 2012 and ended with him ensuring that the other perpetrators were able to flee with the money they unlawfully took from the Post Office. He enjoyed the fruits of the robbery by receiving R1 800-00 for the role he played. As his involvement took place prior to 3 October, the ineluctable inference is that he must have been aware that firearms and ammunition were to be used during the robbery. His decision to continue to participate in the robbery, albeit as the driver of the getaway vehicle, indicates that he fully associated himself with their use. This conclusion is bolstered by the fact that according to his statement he saw the shoot-out between Accused 1 and the deceased. He saw a firearm being held by one of the perpetrators in the Quantum as he drove them away after they had committed the robbery. On these facts it can only be inferred that not only did he foresee the possibility of the use of firearms during the robbery, but also that he was actually aware that firearms were to be used to execute the robbery. While the robbery was in progress he could have dissociated himself from it by driving off, but failed to do so. Instead, he waited for the persons who conducted the robbery in order to be able to transport them so that they could avoid capture and getaway with the stolen money. While doing so, he was aware that one of the perpetrators had a firearm in his possession.

110. This does not detract from the fact that when he saw the shoot-out between Accused 1 and the deceased, he did not stop and wait to see the outcome but instead chose to flee together with the other perpetrators. His decision to flee was not an act of dissociation

from the actions of Accused 1, but rather an act to prevent himself and the other perpetrators from being captured. He must have foreseen the possibility of the firearms being used to evade capture.[14] Accused 1 was not carrying the R5 rifle for the benefit of himself. It was done as part of the group’s plan and activity of robbing the Post Office and was to be used to overcome all resistance, including any attempt to capture him or any of the other perpetrators. This is manifested in the fact that in the bakkie cash taken from the post office was found. Accused 1 was in the process of escaping with the money which he held on behalf of all the perpetrators, including Accused 3. In these circumstances the only inference to be drawn is that Accused 1 carried the R5 rifle on behalf of the entire group of perpetrators, including Accused 3. The same applies to possession of the handgun by Accused 2. He possessed it in the course and scope of carrying out the objective of the group to execute the robbery and to evade arrest. In fact, he used it while the group were in the process of making their getaway and did so to ensure that they met no resistance.

Conclusion on the merits

111. On a conspectus of all the evidence it is found that the following facts have been proven beyond reasonable doubt:

111.1. On 3 October 2012 at or about 13h45 the Post Office in the Flora Centre was robbed of cash by a group of armed men.

111.2. The perpetrators held up the cashiers, other personnel and customers who were in the Post Office at the time. Some of them brandished

firearms, one of which was an R5 Rifle. They fired some shots, but nobody was injured. After helping themselves to the cash in the amount of approximately forty thousand rands (R40 000.00) from the tills the perpetrators exited the Post Office and walked towards the exit of the Centre.

111.3. While walking out of the Centre, Accused 2 was seen, and later identified, by one of the security personnel who at the time was standing within a few metres of Accused 2. Accused 2 was with his accomplices, had a firearm in his hand, pointed it in the air and discharged it in order to frighten everyone in the vicinity. This caused everyone to move away from Accused 2 and his accomplices. All the perpetrators, including Accused 2 then exited the Centre.

111.4. They climbed into two vehicles: the white bakkie and a Quantum. The two vehicles took off at high speed. Moments later, and within a kilometre of the Centre, the deceased travelling on a motor cycle saw the bakkie and gave chase. The driver of the bakkie was Accused 1. While still travelling, the deceased and Accused 1 shot at each other.The deceased got shot in the stomach. He collapsed and later died from his wounds. Accused 1 was shot in the back of his head; the bullet had penetrated the back windshield before hitting the driver, while he was driving the bakkie. The bakkie collided with a taxi, continued to travel, swerved off the road and eventually collided into a wall where it came to a halt. Accused 1 came out. He held a R5 rifle in his hand. He tried to run but was unable to do so. Instead he staggered for a step or two and collapsed on the ground with the R5 rifle falling beside him. He was immediately arrested by Mongwe who, by this stage, had appeared at the scene. Accused 1 was transported to the Helen Joseph Hospital for medical treatment, and after receiving the necessary treatment to ensure that his life was no longer in danger he was transported to Leratong the next day.

111.5. Upon his arrival at Leratong Accused 1 was interviewed by Dlamini. He made a statement. The statement does not implicate him in the crimes for which he was arrested.

111.6. The bakkie was searched and the contents taken by the police. The contents consisted of, inter alia:

111.6.1. two cellular telephones – one having a SIM card bearing the number 082 809 0809, and one having a SIM card bearing the number 083 994 2285.;

111.6.2. a bank card in the name of Accused 2;

111.6.3. the driving licence of Accused 2;

111.6.4. a white cap belonging to Accused 1;

111.6.5. cash;

111.6.6. a cellular telephone charger;

111.6.7. spent cartridges released from the R5 rifle;

111.6.8. ammunitionfor the R5 rifle.

111.7. The bakkie had false registration number plates.

111.8. The bakkie belonged to Accused 2.

111.9. Accused 2 was arrested on 12 November 2012. He had in his possession a cellular telephone containing a SIM card bearing the number 078371 2920. The cellular telephone number belonged to and was used by him. On 13 November 2012 he was interviewed by Dlamini, where he made a statement about his involvement in the robbery at the Centre. He gave the number 083 404 6958 to Dlamini and said it belongs to Accused 3. On Dlamini’s instructions and In Dlamini’s presence, using his own cell phone he called the number.

111.10. On a number of occasions prior to and during the robbery,Accused 2 called Accused 3 on the number 083 404 6958.

111.11. Accused 3 was arrested while he was held in custody on another charge. He made a statement to Naidoo where he furnished information about his involvement in the robbery.

111.12. Accused 3 drove the Quantum to the Flora Centre and transported some of the perpetrators there. He waited in the Quantum while the robbery was in progress. Once the robbery was completed some of the perpetrators got into the Quantum and he drove-off with them. As he drove-off there was an exchange of gunfire between Accused 1 and the deceased. He did not wait to see the outcome of the shootout. Instead, together with the other perpetratorshe fled the scene. As payment for his involvement he received R1 800.00 from those that conducted the robbery, as he merely drove them to the Flora Centre and waited for them while they conducted the robbery and when they returned he only drove them away. His role in the robbery was that of the driver of one of the getaway vehicles.

111.13. As his involvement in the robbery preceded the actual robbery, and as he was communicating with Accused 2 during the robbery, he must have known that his co-perpetrators possessed guns and ammunition which they were to, and did, use in the robbery.

112. The R5 rifle was used by Accused 1 to shoot and kill the deceased was a 5.56 X 45mm calibre LEW Model R5 Assault Rifle. None of the Accused took issue with the State’s claim that in contravention of s 4(1)(f)(i) of the Firearm Control Act of 60 of 2000 (the FCA), the mechanism had been altered so as to enable the discharging of more than one shot with a single depression of a trigger, and that in contravention of s 4(1)(f)(iv) of the FCA the serial number of this R5 rifle had been removed without the permission of the Registrar. Finally, none of the Accused took issue with the submission of the State that the R5 rifle was thus a prohibited firearm and its possession by Accused 1 was in breach of s 4(1)(a) of the FCA.

113. None of the Accused took issue with the State’s claim that the possession of ammunition by Accused 1 and 2 was in contravention of s 90 of the FCA read with provisions of ss 1, 117, 120(1)(a) and 121, read with schedule 4 of the FCA and further read with s 250 of the CPA.

114. None of the Accused took issue with the State’s claim that the possession of the handgun by Accused 2 was in contravention of s 3 read with ss 1, 117, 120(1)(a) and 121 read with schedule 4 of the FCA and further read with s 250 of the CPA.

115. On the basis of the facts relayed above, the State has proven beyond reasonable doubt that:

115.1. Accused 1 had shot and killed the policeman. He had been caught red-handed. He is, accordingly guilty on count 1 of the indictment.

115.2. Accused 1 and 2 played an active partin the robbery and are therefore guilty on count 2 of the indictment.

115.3. Accused 1 was in unlawful possession of a prohibited firearm in terms of s 4(1)(a) of the FCA as spelt on in count 3 of the indictment. He held this firearm on behalf of the entire group of perpetrators, including Accused 2 and 3. Accordingly, they are all three guilty on count 3 of the indictment.

115.4. Accused 1 and 2 unlawfully possessed ammunition and therefore are guilty on count 4 of the indictment.

115.5. Accused 2 was aware that Accused 1 was in possession of a firearm that might be discharged during the course of the robbery, and that if it was discharged a fatality could result. This did occur. Accused 2 had reconciled himself with that possibility. The actions of Accused 1 were part and parcel of the robbery. He is guilty of murder and is therefore found guilty on count 1 of the indictment.

115.6. Accused 1 and Accused 3 were aware that Accused 2 was in possession of a firearm that might be discharged during the course of the robbery, and that if it was discharged a fatality could result. The actions of Accused 2 were part and parcel of the robbery, hence he held the firearm on behalf of the entire group of perpetrators. Accordingly, they are all guilty on count 3 of the indictment.

115.7. Accused 3 partook in the robbery as the driver of the vehicle that drove some of the perpetrators to the Centre. He waited for them while they conducted the robbery and drove some of the perpetrators away so that they were all able to flee. He is guilty on count 2 of the indictment.

115.8. Accused 3 must have known that some of the perpetrators carried firearms, which they intended to use to carry out the robbery. He must have been aware that Accused 1 had the R5 rifle as well as ammunition which were to be used during the robbery should the need arise. The holding of the R5 rifle by Accused 1 was for and on behalf of the entire group of perpetrators, including Accused 3. Accused 3 is therefore guilty on counts 3 and 4 of the indictment.

115.9. As Accused 3 had deliberately left the scene where the shooting was taking place and had done so as soon as the shooting had commenced,

in the light of his failure to testify the only inference to be drawn is that he fled not to dissociate himself from the conduct of Accused 1 but to procure his and the other perpetrators escape. From the outset he foresaw the possibility of the use of firearms during the course of the robbery. He associated therewith by continuing to be part of the robbery right until he, together with the other perpetrators, succeeded in fleeing. Finally, he shared in the spoils of the robbery by getting R1 800.00 for his efforts. The actions of Accused 1 were part and parcel of the robbery in which he took an active part. He is, therefore, guilty on count 1 of the indictment.

115.10. As regards count 5 of the indictment, in the light of the possession of the handgun by Accused 2, for the reasons mentioned above, all three Accused are guilty of this charge.

116. Hence, all three Accused are found guilty on all counts of the indictment.

Vally J

Judge of the Gauteng High Court, Johannesburg Local Division

Palm Ridge

29 October 2014

I concur:

Mr Norman (Assessor)

Ms Letitia Kelly (Assessor)

Appearances:

For the State : Adv Nerisha Naidoo

For the

Accused 1 : Adv M P Maphoto

Instructed by : Legal Aid Board

Accused 2 : Mr M T Tlasi (Attorney)

Accused 3 : Adv J M Mogotsi

Instructed by : Legal Aid Board

Dates of hearing: 14-17, 22-24, 29-30 April 2014, 2, 5, 6 ,8 ,12

16, 21, 22 May 2014, 2-6, 10-13 June 2014,06-

09, 14, 15, 17, 20-22,24 October 2014

Date of judgment on conviction : 29 -30 October 2014

[1]Paragraph 9 of the 3M(m) Form contains two options regarding the state of mind of the suspect during the interview, the one indicates, inter alia, that he was “of sound mind”, while the other indicates, inter alia, that he was “not of sound mind”. The interviewer is required to indicate which of the two statements is applicable during the interview. In this case Dlamini recorded that Accused 1 was of sound mind.

[2]Exhibit H p 4

[3]Exhibit H p 14

[4]In terms of s 217 of the CPA, a confession has to be made to a “peace officer”. A “peace officer” is defined in Section 1 of the Criminal Procedure Act 51 of 1977. A Constable is not listed as one of those persons that qualify as “peace officers”.

[5]This definition was established in R v Becker 1929 AD 167 and was accepted in S v Molimi [2008] ZACC 2; 2008 (3) SA 608 (CC) at [28]

[6]R v Becker (op cit) at 171 - 172

[7]S v Yende 1987 (3) SA 367 (A)

[8][2008] ZACC 2; 2008 (3) SA 608 (CC)

[9]See fn 8

[10] 2002 (2) SACR 325

[11]Molimi, fn 8 at [17]

[12]Fn 11, at [28]

[13]Id. at [18]; Molimi, fn 8, at [36]

[14]See S v Sibeko and Another 2004 (2) SACR 22 (SCA) at [10]