South Africa: Kwazulu-Natal High Court, Pietermaritzburg

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IN THE HIGH COURT OF SOUTH AFRICA

NORTH EAST CIRCUIT LOCAL DIVISION

Case Number: CC169/07

In the matter between:

THE STATE

versus

MFANUFIKILE GOODWILL SHANGE ,,,,,.............................Accused 1

FOX SITHOLE ........................................................................Accused 2

ZOFANIA MTHETHWA ...........................................................Accused 3

SAKHELE JAN SIBISI ............................................................Accused 4

FANI JOHANNE MBONAMBI ................................................Accused 5

SISUSISO BENEDICT SHABALALA .....................................Accused 6

XOLANI MHLUNZI BUTHELEZI .............................................Accused 7

THEMBA NQOBIZITHA KHATHIDE ......................................Accused 8

MPHO PATRICK TSOTENSI ..................................................Accused 9

LEBOHANG LEBO MOTHEPU ...........................................Accused 10

FLAVIO JOSE LOUIS ..........................................................Accused 11

BHEKINKKOSI LEAONARD KUNENE ...............................Accused 12

JOHANNES KHEHLA LANGA ........................................................Accused 13

SIPHO MHLONGO ................................................................................Accused 14

THABO OSCAR MAHOA ...................................................................Accused 15

Sipho PEREY KUNENE ......................................................................Accused 16

THABANI MGISI ZONDO .....................................................Accused 17

LUCKY BUTHEZ PHASHA .................................................Accused 18

VUSI PELE NJOKO .............................................................Accused 19

Sipho VUSI MPONDO GUMEDE ........................................Accused 20

BONGANI SHIPA TSHABALALA ........................................Accused 21

ERNEST NLANGAMANDLA ................................................Accused 22

HAMILTON LIZOKA MAZIBUKO .........................................Accused 23

MBUSO MNCUBE ...............................................................Accused 24

EDDIE KALANGA UBISI .....................................................Accused 25

THULANI BLESSING MTHETHWA ....................................Accused 26

J U D G M E N T

COMBRINK, J:

INTRODUCTION

Originally there were 26 accused who were indicted on 31 charges of murder, attempted murder, armed robbery, attempted armed robbery, kidnapping, motor vehicle hi-jacking, theft of motor vehicles and an assortment of charges framed under the Arms Control Act. During the course of this protracted and difficult trial accused number 10 passed away. I commenced the trial sitting with two assessors, Mr Ian Reid and Mr Bruce Dalling. Halfway through it, Mr Dalling unfortunately passed away. We have sorely missed his valuable input. As required by law I had to decide whether to stop the proceedings, summon another assessor in Mr Dalling’s place and re-start the trial de novo or to proceed with it sitting with Mr Reid alone. I considered the latter course to be in the interest of Justice and resolved accordingly.

The trial commenced on 15 October 2007, a year after the offences were committed and thereafter assumed monumental proportions, with a record numbering in excess of 7 000 pages, augmented by documentary exhibits which have to be read as part of it comprising of some 12 000 pages and a host of physical exhibits. What makes this trial somewhat unique is the introduction of wide-ranging and detailed cellphone evidence by the State, which took up considerable time and effort and which the Court will deal with in some detail later in this Judgment. Suffice it to say at the outset that some 72 000 calls were analysed in order to place the relevant evidence on record with various experts testifying with regard to the nature and reliability of information stored by the Service Providers of cellphones used by the public at large.

THE CARDINAL ALLEGATIONS AGAINST THE ACCUSED

The crimes charged to the accused and the associated allegations central to those may be contextualised as follows. Two motor vehicles belonging to Fidelity Cash Management Services (Fidelity) were conveying cash along the N2 National Road, when they were ambushed, capsized and assaulted with firearms in order to rob them of the cash.

By all accounts the two armed robberies occurred contemporaneously albeit some 30 kilometres apart. The first to be reported occurred near the Charters Creek turn-off from the National Road (hereinafter referred to the Charters scene of crime or Charters as the case may be) and the other took place on the same National road in proximity of the Penicuik turn-off near Kwambonambi (hereinafter referred to as the Penicuik scene of crime or Penicuik as the need arises). The attack at Charters forms the subject-matter of count 9 and the attack at Penicuik count 6.

The Charters and Penicuik armed robberies may be looked upon as the primary offences around which the occurrence of a number of other secondary offences, no less serious, centred. At the primary crime scene at Charters the secondary offences were as charged under counts 1, 2, 10,11, 12, 13 and 14.

At Penicuik the secondary offences are those charged to the accused in counts 3, 4, 5, 7, 8, 15, 16, 17, 18, 19, 20, 21, 22 and 23.

TURNING TO CHARTERS, THE SECONDARY OFFENCES IN QUESTION ARE THE FOLLOWING:

Counts 1 and 2 relate to theft of motor vehicles, where it is alleged that the accused stole the motor vehicles in question to be used in the cash-in-transit robberies and thereafter abandoned them on or in the vicinity of the scene of crime.

Counts 10 and 11 relate to attempted murder of the crew of the Fidelity motor vehicle, namely Mnguni and Mnqayi, the driver and crew respectively. Here the allegations are that the attempted murder arose from the capsizing of the motor vehicle in which they were and shooting at them.

Counts 12, 13 and 14 relate to them attempted murder of the three policemen who chanced upon the scene where the robbery was in progress. Here it is alleged that the accused attempted to kill student Constable Biyela,Sergeant Mthethwa and Inspector Khoza by literally riddling the police vehicle with bullets fired at short range.

PROCEEDING ON TO PENICUIK, THE SECONDARY OFFENCES IN QUESTION ARE:

Counts 3, 4 and 5 relate to the theft of 3 motor vehicles, the allegation being that they were stolen to be used in the primary robberies and thereafter abandoned at the scene.

Counts 7 and 8 relate to the attempted murder of Thring and Ncwane the driver and crew respectively of the armoured Fidelity motor vehicle by forcibly capsizing it and thereafter shot at the crew with heavy firearms intended to penetrate the armour behind which the two Fidelity employees were ensconced.

Count 15 relates to the robbery of one Msweli of his motor vehicle keys.

Count 16 and 17 relate to the kidnapping of Msweli and his passenger, Mkhize, by forcing them to lie down as instructed at gunpoint.

Counts 18, 19 and 20 relate to the hi-jacking at gunpoint of a motor vehicle belonging to one Masango and the attempt made upon his life by shooting at him and the subsequent abduction of his daughter, Nothile, who was a passenger in the motor vehicle with him.

Count 21 relates to the murder of a security guard in the employ of Maxim Security, a certain Gumede, at a stage when the stolen motor vehicles referred to in counts 3, 4, and 5 were being abandoned in a plantation road off the N2 at the Penicuik scene of crime.

Count 22 and 23 relate to the attempted murder of the two security guards in the employ of Maxim Security, namely Nkabinde and Ntombela.

Counts 24 to 30 inclusive, relate to charges framed under the Firearms Control Act 60 of 2000 in which it alleged that the accused were found in unlawful possession of a variety of firearms and ammunition thereto, ranging from handguns to automatic assault rifles.

Count 31 applies to accused number 14 only and relates to his unlawful failure to exercise proper control over his licenced firearm.

The charges contained in counts 24 to 31 will be dealt with at the end of the judgment.

Bearing in mind the aforegoing analysis of the individual charges contained in the Indictment, it is immediately apparent that all 25 accused could not individually have committed or taken part in each offence. It is difficult, for example, to see how 25 accused persons could individually take part in the theft of one motor vehicle.

In this regard the State alleges that, except for count 31, all the offences were committed by all the accused in the execution of a purpose or design common to all of them. In that event, the actions of one in implementation of the common design are imputed to all of them. Accordingly the State relies on the doctrine of common purpose to which we shall return to and deal with fully during the course of the Judgment.

ARRAIGNMENT

All the accused were legally represented throughout, but during the course of the trial changed counsel a number of times and at the final stage to date hereof were and are represented by counsel appointed by the Legal Aid Board. Thus Mr G Maree acts for accused 2, 8,14 and 25. Mr H Fraser acts for accused 9, 13, 18, 21 and 23. Mr T Botha acts for accused 4, 5,15 16, 17 and 26. Mr Parmanand acts for accused 6, 10, 19, 22 and 24. Mr Seedat acts for accused 1, 7, 11, 12 and 20.

Upon arraignment each of the accused pleaded not guilty to all the charges and to a man denied complicity in any of the crimes charged to them. Thereby they placed in issue all the elements which the Prosecution is required to prove in relation to the respective charges brought against the accused.

Section 115 of the Criminal Procedure Act provides a procedure in terms whereof an accused person can choose whether or not to disclose his defence to the offences charged. Where the accused chooses not to do so, as here, the Court in its discretion may question the accused to clarify the issues raised by his plea of not guilty. I chose not to do so, as I was informed by the legal representatives of the accused that the accused placed in issue all the elements of each and every charge preferred against them. That being the case, the lines were drawn and the State was required to prove the accused’s guilt in respect of the offences charged without knowledge of the accuseds’ respective defences thereto. As it turned out the defence raised by each of the accused who testified was in the nature of an alibi disclosed for the first time in the witness box.

THE UNCONTESTED FACTS :

What follows is a summary of the relevant facts which are either common cause or not seriously challenged, bearing in mind the nature of the defences raised by the accused and the absence of countervailing evidence proffered on behalf of them. For convenience and ease of reference these facts are grouped under various headings with descriptive rubrics.

THE PRIMARY OFFENCES:

It will be recalled that, in analysing the charges in the Indictment to determine the central allegations there made involving the accused, we identified two primary offences, namely the armed robbery of the cash-in-transit vehicle belonging to Fidelity at Charters and the attempted armed robbery of the Fidelity cash-in-transit motor vehicle at Penicuik.

Around those two were clustered a number of divergent crimes, which we choose to refer to as the secondary offences.

FIDELITY’S CASH MANAGEMENT PRACTICE:

In view of the fact that the alleged crimes all related to attacks on cash-in-transit vehicles, perhaps this is the appropriate stage in the Judgment to describe the operations of Fidelity in receiving, conveying and dealing with the cash placed in their care by a variety of clients – in the instance, chiefly from the area generally known as Northern Zululand.

From the evidence it emerged that Fidelity operates a fleet of security vehicles, some of which are armoured, as in the case of Penicuik, and some not, as in the case of Charters. These vehicles, normally manned by a driver who is alone in the cab of the vehicle and a crew man who operates the closed section at the rear. They travelled on a daily basis from their base at Richards Bay to the places of business of the various clients. The purpose is to collect monies for banking by these clients, then return to the base where the company on behalf of the client attends to the banking at the appropriate bank of the monies thus collected; and on the next trip to the client’s business, deliver proof of the banked monies in the form of a stamped copy of the deposit slip.

In the case of the two Fidelity vehicles involved in the primary offences both collected cash from businesses situate from Petroport in the south, some 10 kilometres from the town of Hluhluwe to Emanguzi in the north, which is close to the Mozambique border at Kosi Bay.

All the mentioned clients were supplied with the necessary serialised so-called “stop-loss” bags, documents and other material to ensure proper identification and security of all monies collected and intended for banking. Some clients with large cash turnovers opt for the “drop-safe” bags whereby, as monies are received in the tills, multiples of R1 000-00 are counted and sealed in the drop-cash bag which in turn is pushed into a chute which leads to a built-in drop-safe which is sealed and cannot be tampered with or robbed. Inside the drop-safe is a so-called “smart box” which is made of steel and ceramics into which the money bags fall and can only be opened by use of specialised equipment kept at Fidelity’s base.

Only Fidelity personnel are authorised to remove the smart-box from the drop-safe by means of a key and this only in the presence of the client’s representative who simultaneously must use a special tool to release the box from the safe.

On removal from the safe the smart-box automatically becomes “armed” and then can only be opened as mentioned above at Fidelity’s base at Richards Bay. Any unauthorised attempt to open the box, according to the evidence, would result in the cash contents being rendered valueless because of the permeation thereof by indelible dye.

In the case of the two vehicles attacked at Charters and Penicuik respectively, money was collected from the same areas but from different clients. The practice was, also on the day of the attacks, 2 October 2006, that the Hi-Ace Combi, robbed at Charters, would do the necessary banking at Mkuze First National Bank on their way out of monies collected the previous day and kept overnight in the safe of the base of operation at Richards Bay. The Dyna, which was attacked at Penicuik, did not do banking.

That vehicle collected only money, which it would take to the base, which would be banked by the personnel of the Hi-Ace the next morning on their way out in order to serve Fidelity’s clients in the areas aforementioned. On their way back to the base the Hi-Ace would stop at the Mkuze FNB and collect from them the deposit slips of the money which had been deposited at the bank that morning.

Thus on 2 October 2006 the Hi-Ace on its way out first stopped at the Mkuze bank and there deposited the money which had been collected by the Dyna previously.Hence the number of deposit slips which were in the Hi-Ace when it was robbed.From there the Hi-Ace proceeded to serve the clients in Northern Zululand as aforementioned. During the course of the day the two vehicles generally travelled together and were on their way back together, when the Hi-Ace had to turn off at Mkuze in order to collect the deposit slips and other documentation dealing with Fidelity’s handling of the cash entrusted to them,the Dyna carried on to Hluhluwe later to be joined there by the Hi-Ace again. From Hluhluwe the two Fidelity vehicles accompanied each other up to Petroport plus-minus 10 kilometres south of Hluhluwe on the N2.

At that point the Hi-Ace turned off into Petroport, a filling station, while the Dyna carried on south.Thus, when the attacks upon the vehicles occurred more or less simultaneously, they were approximately 30 kilometres apart – the Dyna at Penicuik and the Hi-Ace at Charters.

CHARTERS – COUNT 9:

Although the Charters robbery was reported after the Penicuik hold-up I find it convenient to commence with the former.

Sipho Mnguni and Bheki Mnqayi were respectively the driver and crew of the Fidelity Toyota Hi-Ace panel van (Hi-Ace). It is a Combi-type motor vehicle painted green, the typical colour of Fidelity’s security vehicles. Both testified covering the same ground. The more detailed account of how the robbery evolved, understandably,came from Mnguni, the driver of the Hi-Ace. His evidence was that early in the morning of 2 October 2006 they had set out from Fidelity’s base at Richards Bay to collect and bank monies emanating from various clients, as aforementioned.

On that day they collected money from as far afield as Ingwavuma on the north-western border of KwaZulu Natal and Swaziland, and Emanguzi on the north-eastern border of KwaZulu Natal and Mozambique, and were on their way back along the N2 National road, their last collection point being at Petroport filling station just south of Hluhluwe.

Exhibit K is an inventory of cash and related documents and banking receipts which they as crew dealt with on 2 October 2006. The list is divided into columns, which starting from the left, records: (1) the name of the client and the area in which the business is situate;(2) a numerical code dedicated as specific to the particular client; (3) the serial number of the receipt furnished by the crew of the Hi-Ace to the client in which receipt of the money or cheques, as the case may be, is acknowledged; (4) “Bag numbers”. That column reflects the client’s money which was placed in various containers which differed widely. The so-called “bag” could be a smart-box, which can only be opened at Fidelity’s offices in Richards Bay;drop-cash bags, four types of “stop-loss bags” with dedicated code numbers which relate to the size of the bag;“P-envelopes” – in which cheques and deposit slips are placed; each container or bag is also coded in such a way that, by reading the code, the reader would know what type of “bag” he is looking at;(5) the amount of money and cheques in the bag.

Exhibit K also tabulates in the remaining four columns – the amount of cash and cheques that were stolen. Only the money was computed in order to determine the amount of cash lost in the robbery;the bags that were found at the scene of crime at Charters – some empty and some with cash in them, together with a note of the deposit books and slips recovered on the scene.

Mnguni testified that they arrived at the Petroport filling station at approximately 18h00 and departed at plus-minus 18h10. That time estimate is also confirmed by the witness, Smalman, the owner/manager of the filling station. Immediately upon entering the N2 from the filling station in a southerly direction Mnguni noticed the headlights of a motor vehicle emerging from the filling station behind him, which thereafter appeared to him to be following the Fidelity vehicle. What held Mnguni’s attention was that the motor vehicle following behind kept the same distance, notwithstanding the fluctuating speed of the Hi-Ace.

After they had passed the Charters Creek turn-off, approximately 15 kilometres south of the Petroport filling station and plus-minus 20 kilometres north of Mtubatuba, the following headlights disappeared for a while, only to re-appear again, but this time at speed. Being uneasy, he mentioned that to his crew Mnqayi, who was sitting next to him at that stage. The latter suggested that they move to the side of the road to allow the motor vehicle to pass. Mnguni did so, but instead of passing the Hi-Ace, the pursuing motor vehicle moved to the opposite side of the road and then suddenly and violently swerved back to the Hi-Ace deliberately smashing into the right-rear corner of the Fidelity vehicle. That caused Mnguni to lose control of the Hi-Ace, which swerved to the opposite side of the road out of control and overturned off the road on the western side thereof.

The extensive damage to the Hi-Ace which followed included the loss of the windscreen, leaving an opening through which Mnguni and Mnqayi egressed.Mnguni’s first awareness at that stage was of gunfire in the dark and the rain. At that stage he did not know where the shots emanated from or what the target was. However, subsequently he found bullet damage to the roof of the Hi-Ace.

Both Mnguni and Mnqayi sustained collision injuries including lacerations to the scalp which bled profusely.

The assailants repeatedly shouted “down”. Mnguni prostrated face-down with a gun to his head. He was forcibly deprived of his wedding ring, money and the Fidelity revolver, a Rossi .38 special. Whilst face-down on the ground, Mnguni heard a multitude of voices and sounds emanating from the stricken Hi-Ace. He was under the impression that the sounds emanated from the plundering of the vehicle. Mnguni’s limited observation, further hampered by the dark and rain, is substantiated by the photographic material placed before us, considered in conjunction with the evidence of the police’s Forensic Unit. That served before us in the form of a plan of the scene of crime and the descriptive key thereto. The photo exhibits reveal extensive damage to the vehicle and in particular, its roof. The nature of the damages to the latter suggests that it was hacked rather than cut open. This inference is strengthened by the presence of a heavy hammer and a large axe discovered next to the capsized vehicle afterwards.

It would seem that the plundering of the Hi-Ace took place in great haste.Understandably, given that it was taking place on the N2 in the dark and rain withtraffic heaping up on both sides of the crime scene.

Mnguni lay face-down listening, because he could not see what was happening. Someone shouted that the police had arrived and shooting immediately erupted. From the shouted conversation and sounds of increased activity at the Hi-Ace Mnguni deduced that some of the assailants were asking to hand over “things”, being taken from the capsized vehicle. Thereafter the assailants appeared to have departed in a hurry.

That piece of evidence dove-tails perfectly with the evidence in relation to counts 12, 13 and 14, arising from the shots fired at the police, who had chanced upon the scene at about 18h30, during which one of the robbers, said to be accused 25, was shot and injured. That that occurrence had, in a sense, cut short the looting is supported by the evidence of what was found by the police at the scene of crime in the vicinity of the Hi-Ace.

In their haste the assailants left behind a number of stop-loss bags containing some R350 000-00 in cash, retrieved from in and outside the vehicle. What appears to have been stolen is the amount of R1 118 413-00. The individual items belonging to the Fidelity customers,which were conveyed in the Hi-Ace at the time, are listed and described in Exhibit K and confirmed in the evidence of Mnguni and, particularly Mnqayi. Mnqayi testified concerning the assignments regarding banking and collecting of customer-money undertaken by the crews of the Dyna and the Hi-Ace respectively on 2 October 2006. Briefly, the Dyna collected cash only and was on its way back to the Fidelity office at Richards Bay when they were ambushed. The Hi-Ace on its way out, banked at FNB, Mkuze, the money held overnight at the Fidelity base at Richards Bay and obtained the relevant deposit slips on the way back. Having visited the areas and collected the money from Fidelity customers and having collected the deposit slips from Mkuze, the Hi-Ace was on its way back when the Charters robbery occurred.

We hold that, save for the identity and criminal responsibility of the perpetrators, the robbery of the Hi-Ace (count 9) had been proved beyond a reasonable doubt.

SECONDARY OFFENCES AT CHARTERS

ATTEMPTED MURDER OF THE HI-ACE CREW – COUNTS 10 AND 11

There appears to be insufficient evidence that the shooting that emanated contemporaneously to the capsizing of the Hi-Ace was aimed directly at Mnguni and Mnqayi. In our view the shots were rather fired in terrorem, directed at subduing the crew of the Hi-Ace and convey notice that resistance would be futile. Accordingly, those actions on the part of the assailants did not constitute an attempt upon the crew’s lives. Having said that, however, we are left in no doubt that the act of deliberately smashing into a relatively fast-moving motor vehicle with a view to causing the driver to lose control thereof so that it would run off the road and possibly overturn, as happened in the instance, does amount to an unlawful and malicious attempt to murder the driver and the crew or whoever else was in their company. There can be little doubt and we have none, but that the actor engaged in smashing his motor vehicle into another with the aforementioned purpose,subjectively foresees the possibility that the targeted vehicle might capsize and cause the death of the occupants.

Where, as here, the assailant, alive to that possibility, nonetheless causes such a collision, acts with reckless disregard to the possible fatal consequences and renders himself and all others who share his purpose in that regard, guilty of murder, where death of the occupants ensues and, where not, guilty of attempted murder.All that remains to be established is the identity and criminal liability of the assailants, to which we shall return anon.

ATTEMPTED MURDER – COUNTS 12, 13 AND 14

The incident which gave rise to those charges sprang from the traffic stoppage engineered by the robbers to keep the ordinary road traffic away from the scene of the actual robbery as described earlier. Three policemen, stationed at Kwamsane at Mtubatuba, had been engaged in a routine patrol at Shikishela, a rural hamlet just off the N2 in the vicinity of the Charters scene of crime. They were on their way back to their station, using the N2, when they encountered motor vehicles with their hazard lights on, stationary in their lane and facing the same way – south. That, according to Biyela, the driver of the police vehicle, was at 18h30 and it was deep dusk with rain. He had been driving with his van’s headlights full on. They were in a properly marked Isuzu four by four double cab bakkie.

The vehicle was immediately identifiable as a police vehicle. Inspector Khoza was a front-seat passenger and Constable Mthembu was seated in the rear. They stopped their vehicle believing that there had been an accident at some point on the road ahead of them. Biyela brought his vehicle to a stop behind a “Clover” truck which blocked their view beyond it. Inspector Khoza was busy trying to engage the official blue light, when a Mercedes Benz pulled up behind them. In his rear-view mirror Biyela observed a man exiting from the driver’s door and approaching the police vehicle on his, the driver’s side. The man was next to his window. He shouted at Biyela to get out, adding the usual expletive with reference to the maternal anatomy, whilst pointing a rifle at him through the driver’s window. The assailant presented as an adult black male. Biyela, it would seem, instinctively ducked to his left away from the threatening firearm. At the same time his assailant started shooting. Biyela heard other firearms also joining in.

He was aware that his motor vehicle was struck by a number of bullets and later found that there were bullet holes in the backrest of his seat. Whilst in the process of still ducking towards his left, Biyela returned fire at the man shooting at him and believed that he had struck the latter in the upper body. The wounded man went to his knees and started crawling away screaming “the dog shot me”. At that point Inspector Khoza had already departed the police vehicle through the left passenger door and into the bush. So, apparently, had Constable Mthethwa. With the assailant outside his window out of the way, Constable Biyela jumped out of the front door of his vehicle, ran across the road and into the bush – all the way being pursued by bullets, clipping the shrubbery around him. As he fled from his vehicle Biyela saw the person he had shot being assisted away into a dark “old shape” BMW without registration plates. Biyela took refuge in a nearby homestead and later returned to the scene, where he found other policemen present. He then noticed that he had happened upon a cash-in-transit robbery. He found his police vehicle where he had left it, the engine still running.

The Mercedes Benz that had parked him in was still behind his vehicle. The dark BMW, into which the wounded assailant had been assisted, was no longer on the scene. However, that vehicle appears to have been recovered some 1 kilometre removed from the scene of crime with evidence of blood in and on it and the relevance thereof will be discussed anon.

Photographs collected in Exhibit E reveal substantial bullet damage to the police van in question at a level and position on it that makes the inference inescapable that the occupants of the police vehicle were directly targeted by the gunfire directed at it.

The two policemen who accompanied Biyela in the police vehicle did not testify. Indeed, there appeared to be no need for that, given that the cross-examination of Biyela, apart from questions directed at testing the veracity and reliability of his account of the events, did not effectually place in dispute any of the material facts testified to by him. Nor was it suggested on behalf of the accused that an adverse inference is to be drawn from the absence of their evidence.

In the light of Biyela’s uncontested evidence, particularly dealing with the way the police vehicle and its occupants were shot at by the attackers and the gunshots that followed Biyela in his flight in and through the bush, leaves us with no doubt but that the assailants were possessed of the requisite dolus, intention to kill and murder the complainants referred to in counts 12, 13 and 14. All the elements of the respective offences of attempted murder have been proved beyond reasonable doubt.

What remains to be established is the identity and liability of the assailants. That comes up for consideration later.

THEFT OF THE BMW – COUNT 2

W A Mans, the owner of the motor vehicle, which forms the subject-matter of this charge testified that on Saturday 26 August 2006 he had dropped his daughter at school at Roodekranz, Johannesburg, Gauteng Province, when the vehicle, a dark blue 7 series BMW was stolen from where it was parked in the street. He actually saw it being driven away. With the help of a security guard they gave chase in the latter’s vehicle. However, they were unsuccessful. He reported the theft to the police without success.

Sometime later, during October 2006, after the Charters robbery, he identified his vehicle at the Police Station at Mtubatuba. The identification was positively made in that the engine and chassis numbers on the motor vehicle corresponded with the registration papers which he had with him and, further, with reference to scratches and marks on the vehicle, which only an owner would have known of. He testified that the vehicle had been damaged after the theft thereof. To him it appeared that his vehicle had been involved in a collision and sustained damage to the front-left corner and side.He was however able to drive his vehicle away from the Police Station.

Tangential to this evidence is the testimony of Constable Xulu, who discovered the BMW in the plantation on a gravel road off the N2 at bridge L on the same night. The bridge in question crosses the N2 from east to west with glide-offs on the western side. The bridge is close to the Charters scene of crime. The vehicle was taken to the Mtubatuba police station. The photographic evidence placed before us depicts the BMW in question. The collision damage described by Mans is clearly evident in those.

Upon examination of the retrieved BMW there was found what appeared to be blood on the seat and the wheel rim of the vehicle. Samples taken from the relevant areas revealed that it was indeed blood and the DNA comparative tests revealed that the blood on the vehicle matches the samples taken from accused number 25 to a degree beyond any question. The blood on the vehicle was that of accused 25. Given the circumstances described above the presence of the BMW at the Charters scene of crime and the damage thereto, is consistent with it having been used to smash the Hi-Ace out of control which resulted in it capsizing off the road as already described. The BMW also played a pivotal role in the evidence of one, Sithole, to be mentioned later.

The photographic evidence before us depicts the BMW in question, identified by the witness Sithole, from photograph 31 in album “E” and which is also depicted in photograph 101 in album “L”. The photograph “E” 31 shows the rear of the vehicle with a drawn blind over the back window. Photograph “E” 29 depicts damage to the left front and side thereof.

The aforementioned Sithole, as will appear, saw the rear blind of the BMW which he was following on the R34 being drawn when he stopped behind it at a robot in Empangeni. It appears significant that the photographs he identified it from show a blind across the rear window, whilst the photograph of the BMW used at Penicuik to upend the Dyna do not show a drawn blind. Accordingly Sithole’s identification of the BMW recovered at Charters appears to be accurate.

THEFT OF THE WHITE MERCEDES BENZ C180 WITH REGISTRATION NUMBER RZF 712 GP – COUNT 1.

This motor vehicle belonged to Avis, a car rental company. According to the evidence of J Venter, a Regional Manager of the company, the vehicle was robbed from the Centurion branch of Avis at Pretoria on 7 February 2006. At the time it had done 317 kilometres as shown on the odometer. On 24 November 2006 he identified the vehicle then in the custody of the police, as the one which had been robbed. His evidence of the identification was detailed and beyond question. At that stage the odometer reading was 40 173 kilometres.

The vehicle in question was identified by Constable Biyela as the white Mercedes Benz that stopped behind him and whence came the person who shot at him and whom he injured in return fire. Afterwards the vehicle was recovered by the police from where it was still parked behind Biyela’s police van.

Like the BMW this Mercedes Benz was used in execution of the Charters robbery and abandoned afterwards.

As will appear later in the Judgment, the Mercedes Benz also was one of the motor vehicles encountered by a certain Sithole on the R34 to Empangeni and from there on to the house of accused number 24 at Mzingazi, Richards Bay. Sithole identified both the BMW (from a photograph as similar), and the Mercedes (conclusively on sight), at the Charters scene after the robbery, when, as an official of Fidelity, he visited the scenes of crime.

As in regard to the other counts dealt with thusfar, the theft of the Mercedes Benz has been established beyond reasonable doubt. What is outstanding at this point is the identity of the thief or thieves, as the case may be, bearing in mind that theft is a continuing offence.

PENICUIK – COUNT 6:

RELATING TO THE ATTEMPTED ROBBERY OF THE DYNA

The Fidelity vehicle involved in this charge was a green Toyota Dyna armoured truck. The unique composition of this vehicle is also the key to the failure of this cash-in-transit robbery. The vehicle comprises a driver’s cab and an enclosed bin at the back thereof. The cab and the bin are totally separated from one another. The driver’s cab has the usual appointments found in an ordinary driver’s cab of a truck of this nature. However, the panelling, side windows and the windscreen are re-inforced so as to be bullet-proof. Likewise the side walls and roof and the back door of the bin – being the only access to the rear of the Dyna – together with two small glazed windows are re-inforced so as to be impregnable to tools usually employed by robbers to gain access to the cash.

On the day in question, 2 October 2006, which followed shortly upon the month-end when a lot of cash changed hands, the Dyna’s crew collected cash takings from the Fidelity clients spread throughout the north eastern reaches of KwaZulu Natal. Unlike the Hi-Ace, the Dyna’s crew did no banking.

It collected cash only which was destined to be taken to the Fidelity base at Richards Bay, to be held overnight for banking the next day. Having completed its collection rounds, the Dyna was on its way back to Richards Bay, when it was beset by robbers on the N2 at Penicuik.

The Dyna was at all times driven by one Thring, who was on his own in the cab. His crew, a certain Ncwane, was locked into the bin. The only form of communication between driver and crew was through an intercom system. As they approached the Penicuik scene of crime, Thring saw in his rear-view mirror the headlights of a fast-approaching motor vehicle, which he saw later was what he described as a “silver” 7- series BMW, apparently on a collision course with the Dyna. Practically immediately after that a violent impact occurred to the right-rear of the Dyna. Later that evening after the event, Thring saw the BMW on the scene exhibiting impact damage to its left-front corner, which corresponded with the damage of a similar nature to the rear corner of the Dyna.

The BMW’s impact caused Thring to lose control of the Dyna, which spun around across the road and off it, where it overturned and ended up on its left side facing, after a fashion, in the opposite direction whence it came. Contemporaneously Thring heard gunfire which he believed was directed at the Dyna. Due thereto that the Dyna came to rest on its left side, Thring had fallen to the passenger side of the cab, where he lay prone on the passenger window, which was resting on the ground. In the headlights of the BMW or some other vehicle behind the Dyna, Thring could see a man armed with a rifle. That man tapped on the windscreen with the rifle barrel, shouting to him in Zulu to get out. Thring pretended that he was unconscious, believing that he was relatively safe behind the bullet-proof windscreen. He did not respond, but the demands to open and get out continued. At the same time he heard what he considered to be gunfire from an automatic rifle. The shots coincided with the sounds of bullets hitting the bin of the motor vehicle. During all of this Thring managed to call his Richards Bay base informing them that he was under attack.

He used the spoken code intended for such an emergency – “opskud Penicuik” – thus furnishing knowledge of the robbery as well as the location. Such alerts are noted by the recipient at the base, who makes a note of the report as also the time it was received. In the instance it appears uncontested that the recorded time of Thring’s alert was at 18h38, bearing in mind that at this time the Charters robbery was also in progress. As Thring lay there he took note of bits and pieces of the events. His impression, judging from the raised voices outside, was that there were quite a number of assailants gathered around the vehicle on the scene. He heard the shouting directed at his crew, Ncwane, in the rear to open the door and the latter’s response that he was unable to – that the keys were held at the Fidelity offices. After a time the robbers appeared to give up their efforts at accessing the cash. Sometime later the police arrived and Thring was assisted out of the Dyna.Ncwane’s position in the Dyna was not conducive to detailed observation. Locked into the rear of the vehicle he could see nothing. He could only hear and feel.

Thus his testimony that he heard and felt the impact on the rear of the Dyna and experiencing the vehicle spinning around and capsizing, he must have been flung about like a rag doll. After the vehicle had come to a rest he heard and felt the impact of bullets being fired at the back of the vehicle. Voices outside the door demanded that he open the door and come out. He became aware of attempts on the outside to force open the bin door. Significantly, for reasons to follow, he heard the sound of “a generator used for cutting”. He was taxed on this observation in cross-examination but persisted that the sound likened the sound of a generator used for cutting, which he heard when he was working at “Springbok”, although he was unable to explain the workings thereof. Whatever one chooses to make of the lack of detail, which accompanied Ncwane’s inference that a cutting tool had been used on the bin door, photographic material (Exhibit D and OO), clearly evidence signs of tampering at the hinges of the door in question. All three hinges on the door show signs of scouring around each, where the paintwork was destroyed and the underlying scoured metal laid bare. The scouring marks appear consistent with the use of a cutting tool of sorts.

As will appear later in the Judgment a large motorised petrol-driven angle grinder was found in a white Combi driven by accused number 24 upon arrest of the latter during the same night at Mvoti Toll Plaza on the N2. Ncwane confirmed Thring’s evidence that after a while the robbers left the scene and the police arrived about fifteen to twenty minutes later.

After his emergence from the Dyna, Thring observed the silver BMW which had rammed his truck. It appeared to have been abandoned where it had come to a stop after the collision. Photographs D8 and D9 reveal the extent of the damage to the left-front of the BMW, which was manifestly extensive. That is understandable, given the mass and size of the truck it smashed into, causing it to spin out of control and capsize.

The evidence as outlined suffices to prove beyond any doubt that the attempted cash heist charged under count 6 was committed. Only the identity and liability of the assailants remain outstanding.

SECONDARY OFFENCES – PENICUIK:

ATTEMPTED MURDER – COUNTS 7AND 8

Under these two charges it is claimed that the gunfire, which the assailants subjected the Dyna to constituted an attempt to kill and murder Thring and Ncwane, the driver and the crew of the vehicle.

Both Thring and Ncwane testified that the perpetrators fired at the Dyna with automatic rifles. Indeed, the forensic examination of the scene of crime subsequently undertaken by Inspector Mthiyane of the Mtubatuba Local Criminal Record Centre, revealed a substantial number of spent bullet casings in the vicinity of the Dyna. Thring testified that a bullet scar was visible on the outside of the door of the cab, which did not penetrate the reinforced panel. He also found a bullet hole in the front right side of the bin, which passed through the panel into the interior of the bin, where Ncwane was.

However, it does not end there. As in the engineered collision with the Hi-Ace at Charters, the collision of the Dyna at Penicuik carried with it the very real possibility of fatal injury to the crew. We entertain no doubt that the driver of the BMW subjectively foresaw the risk that the crew of the Dyna might die in the accident which he manufactured, when he smashed his vehicle into the back of the truck with a view to sending it out of control and possibly capsizing. By deliberately creating the collision with the Dyna, notwithstanding his appreciation of the risk to the crew, the driver of the BMW demonstrably reconciled himself with the possible fatal outcome of his actions. Accordingly, that driver, whoever he may prove to be, and all those who shared that purpose in common with him, whoever they may be, is/are guilty of the crime of attempted murder of both Thring and Ncwane.

MOTOR VEHICLE THEFT – COUNT 3

This count deals with the theft of an Isuzu bakkie from the possession of one Daniel de Bruin. This vehicle was found abandoned in the forest at Penicuik. De Bruin testified and identified the vehicle as his property at the Police Station at Isipingo, his vehicle having been stolen at Scottsville – Pietermaritzburg on 12 September 2006. His evidence was uncontested and we found that the State has proved this count beyond a reasonable doubt.

MOTORVEHICLE THEFT – COUNT 4

This count relates to the theft of a Nissan bakkie from the lawful possession of one Devenand Sarjoo in Durban. Sarjoo testified that the vehicle was stolen in Nicholson road on 13 September 2006. He later identified the vehicle at Cato Manor Police Station on 16 October 2006. His evidence was uncontested. This vehicle was found abandoned in the forest at Penicuik. We find that the state has proved this charge beyond reasonable doubt.

MOTOR VEHICLE THEFT – COUNT 5

This count deals with the theft of a White BMW that was abandoned after the Penicuik attempted robbery in the nearby forest together with the vehicles referred to in count 3 and 4 above.

The state alleged that the theft of the BMW was from the possession or ownership of a person or persons to the State unknown.

In the nature of things, whether the BMW in question was stolen or not, is a matter for inference from all the available facts. The paucity of evidence of the actual theft of the vehicle and the absence of established animus furandi in relation to this alleged theft leaves this count unproved.

THE BMW USED TO RAM THE DYNA AT PENICUIK

This BMW did not form the basis of any charge brought by the State, but it is important to mention it at this stage of the judgment. This BMW was left abandoned on the grass verge of the road at Penicuik in close proximity to the capsized Dyna. This vehicle in the photographic material before us in photographs 8 and 9 in album “D” depicts extensive damage to the left front thereof, probably rendering it immobile after the collision with the Dyna.

ROBBERY AND KIDNAPPING – COUNTS 15, 16 AND 17

These charges concern the alleged robbery and kidnapping of a certain Msweli at the Penicuik scene of crime. The complainant, Msweli, testified that at about 18:30 on 2 October 2006, he approached the scene of crime from the north along the N2 in an Opel Corsa vehicle, when he came upon a white Nissan bakkie which was slowly driving ahead of him. Msweli tried to pass the Nissan on the latter’s correct side, when it moved to the right also, cutting him off. Msweli then tried to pass on the Nissan’s left side, using the emergency lane for that purpose. Again the Nissan moved across and cut him off and came to a stop in front of him, thereby forcing Msweli to stop also. Two men armed with rifles came from the Nissan and, pointing the firearms at him, instructed Msweli to hand over his vehicles keys and to lie prone in the vehicle. Msweli complied with alacrity. It would seem that Msweli’s was the first vehicle to approach the scene of crime at Penicuik on the N2 from the north. When next Msweli“peeped” to see what was happening, he observed the Nissan leave at speed on the incorrect side of the road and turn off to its right into the plantation.

Given the layout of the terrain at the Penicuik scene of crime, as it appears from the police plan and key, the gravel road into which the Nissan turned, is a plantation road which crosses the N2 from east to west. To the east the gravel road continues across a railway line, which runs parallel to the N2 at that point and from there heads into the plantation. To the west the gravel road enters a plantation and continues on to the small town of Kwambonambi. With that picture in mind, I turn to Msweli’s evidence. He saw the Nissan turn into the bush and “a lot of people” at that point, who were stopping motor vehicles which approached the scene of crime from the Empangeni side, i.e. from the south on the N2. He also saw the Fidelity truck lying on its side off the road and near it the BMW mentioned earlier. Whilst still prone in his vehicle, Msweli heard the sound of a generator which emanated from the direction of the Dyna, although he only saw the vehicle itself sometime later. When he eventually got out of his vehicle, he encountered other motorists who had apparently approached the scene of crime from the Empangeni side and who were also forced to stop.

The circumstances in which Msweli was deprived of his vehicle’s ignition keys although patently intended to immobilise the vehicle, constitutes robbery. All the elements of that crime are present.

Whether his being forced to prostrate himself in his vehicle amounts to kidnapping him, is another matter. The crime of kidnapping, in general terms, is constituted by the unlawful and intentional deprivation of the complainant’s freedom of movement. Although, again generally speaking, the gunmen acted unlawfully by instructing Msweli at gunpoint to hand over the vehicle’s ignition keys and to lie down in it, I doubt that the requisite intent to deprive him of his freedom of movement on the part of his assailants was present. The action of Msweli’s protagonists by seizing his keys and instructing him to lie down in his vehicle is consonant with an intention to immobilise the vehicle and warning Msweli to stay out of it and not to look or interfere with the robbery which was under way. At the end of the day we entertain some doubt that Msweli was criminally kidnapped and hold that the offence charged under count 16 was not proved.

Count 17 relates to the alleged kidnapping of Mkhize, who was Msweli’s passenger in the Corsa vehicle, when they were confronted by the two armed assailants and the vehicle keys were forcibly taken. Mkhize did not testify and the only reference to his presence in the vehicle came from Msweli and then only in passing. There is no indication anywhere in the evidence that could possibly support a charge of kidnapping involving Mkhize and we hold that the charge fails.

HI-JACKING OF MASANGO’S MOTOR VEHICLE, ATTEMPTED MURDER INVOLVING HIM AND THE KIDNAPPING OF HIS DAUGHTER NOTHILE – COUNTS 18, 19 AND 20

One Masango and his daughter worked for Bay Brick, Empangeni. During the early evening of 2 October 2006 they were on their way home in Masango’s double cab Ford Ranger travelling north on the N2, when they came across traffic ahead of them which had come to a stop. Masango joined the line of stationary vehicles, believing that the hold-up was due to an accident which had happened ahead.

In fact the traffic was brought to a stop on both sides of the scene of robbery by the perpetrators thereof. It appears that most of the road users believed that the interruption of the traffic flow was due to an accident. In fact, Inspector Herbst, who was a member of the Empangeni Flying Squad on patrol, was informed that a motor vehicle accident had occurred on the N2 and it later transpired that in reality it was a cash-in-transit robbery which took place at Penicuik. When Masango was forced to stop it was about 18h45 according to his estimate. His daughter, Nothile, put the time as“going on to 7pm”. One of the stationary motor vehicles in front of Masango pulled out of the queue and made a U-turn. When it came next to him the driver spoke to Masango and he recognised his neighbour, who informed him that there was no way “through there” and suggested that they turn around to look for a“short cut”. When his neighbour had driven off, Masango too turned about and headed back in the direction of Empangeni. Ahead of him he saw the tail-lights of a motor vehicle turn to the right into a gravel road which led into the plantation. Believing that that was his neighbour’s motor vehicle, Masango followed suit.

As he drove onto the gravel road, he noticed a number of motor vehicles facing the same direction with their doors open and their hazard lights on. He stopped and his daughter told him that there was blood on the rear of the nearest bakkie. Believing that he had stumbled upon a crime scene, Masango backed towards the N2. As he was about to enter upon the tar, he had to stop for approaching traffic on the N2. At that point his daughter drew his attention to two men who appeared in front of his vehicle approaching with rifles pointing at him. His first impression was that they were policemen as they had typical reflective vests on.He got out of his vehicle with his arms raised above his head. His daughter remained inside. The armed men instructed Masango to leave and he fled, at times on hands and knees because he heard what he thought were shots, which he believed was fired at him. Masango’s path of flight was parallel to the N2 heading for the safety of the line of stationary vehicles which he had left earlier.

At this point I move away from the narrative of Masango’s evidence and turn to that of his daughter, Nothile, which corresponded with his up to that point. She said that when her father got out of the vehicle she locked its doors from the inside. That caused the assailants to smash the left front passenger window. Nothile then unlocked the door. They pulled her out of the vehicle but one of them suggested that they take her along. As a result they pushed her into the back seat and drove off. There were two assailants in the cab and a substantial number of them in the bin of the motor vehicle.She estimated that number of men to be between 10 and 12.The activity associated with the forcible taking over of Masango’s motor vehicle corresponds with the evidence of what the witness, Msweli, saw and described at the entrance into the plantation road into which the Nissan bakkie had turned. Indeed, a white Nissan was found abandoned together with two other vehicles in the plantation a short distance into the gravel road in question. Nothile testified that the assailants conveyed her in the direction of Empangeni but turned off to Nseleni, some 8 kilometres from the Penicuik scene of crime in her estimate.

After a short distance they let her out of the vehicle from where she made her way to a nearby homestead. Her father’s double cab was abandoned within sight of that house.

Returning to Masango’s continued account of the events which befell him – he reached the apparent safety of the line of waiting motor vehicles and there came across a police bakkie with two policemen in it. He told them what had happened and they turned their vehicle about and departed, saying they were going to assist. He never saw or heard from them again. Proceeding on from there Masango encountered a “Venture” vehicle full of policemen and a policewoman. When he approached them the police informed him that an armed robbery was in progress, that it was dangerous and said they were afraid as the robbers were heavily armed! Masango eventually was assisted by a security guard who took him to the Kwambonambi Police Station. He managed to contact his daughter on her cellphone,whoinformed him that she was safe and unharmed and that his double cab had been left by the hi-jackers nearby.

Thus it came to pass that Masango was re-united with his daughter and his double cab, also unharmed but for the broken window. Applying the prerequisites of the crimes alleged in counts 18, 19 and 20, we have no hesitation in holding the hi-jacking of Masango’s vehicle and the kidnapping of his daughter had been proved beyond all reasonable doubt. However, the identity of the perpetrators and their liability remains to be dealt with.

We are satisfied however that the evidence regarding the attempted murder involving Masango fell far short of proof of the commission of such an offence.

THE MURDER OF SECURITY GUARD GUMEDE – COUNT 21:

This charge arises from the death of one Gumede, who, during the early evening of 2 October 2006, was shot to death at the closing stages of the abortive attempt to rob the Dyna at Penicuik. Although the testimony of the witnesses Ntombela and Nkabinde was somewhat disjointed, they appeared to be honest and reliable witnesses and their account of the facts was not effectually challenged and certainly not countervailed. What follows is what we believe to be an accurate summary of what transpired.

Gumede (the deceased) was a security guard in the employ of Maxim Security operating from Kwambonambi. On the day in question (2 October 2006) the deceased was on duty at the sawmill guarding a heavy duty machine used in the timber industry. At about 18h15 to 18h20 two other guards were dispatched to fetch the deceased, whose shift had ended. They left in a bakkie driven by Ntombela, accompanied by Oscar Nkabinde. They travelled from Kwambonambi which lies to the south of Penicuik, on the N2 to Penicuik and turned onto the eastern leg of the gravel road described earlier in dealing with the evidence of Msweli and the two Masangos.Just as their vehicle left the tar surface onto the gravel,they came across a white Combi with what appeared to be police registration plates, but with no police markings. The driver of the Combi cautioned Ntombela not to drive about in that area, a peculiar admonishment, considering that they were obviously security guards in a security vehicle. This was at dusk and at about 18h15 to 18h20. They continued driving and encountered another vehicle on the gravel road – this time a Telkom Colt bakkie with the Telkom emblem on its side. The driver was outside the vehicle apparently busy with his cellphone.

Having picked up the deceased, Ntombela returned along the same route, again passing the two vehicles. Ntombela had decided not to use the N2, but instead crossed over it onto the gravel road leading west, also referred to earlier. They had just crossed over the N2 when the deceased asked Ntombela to turn around and go back to the equipment he had been guarding, as he had forgotten his two-way radio there. Ntombela complied. They went back the same route, collected the radio and returned the same way. On both occasions they passed the Combi and the Telkom vehicles. On their return trip they reached the N2 but had to stop before crossing over it, as there were fast-approaching vehicles with their indicator lights on, signifying a turn to the right, which would place them on the gravel road west of the N2, which Ntombela was intent upon taking to Kwambonambi.At that stage he observed that the Combi with the police registration on it had moved on to the N2, effectually blocking off the traffic from the south. The Telkom Colt was also in the vicinity.When the last of the three approaching vehicles had turned into the gravel road, Ntombela followed them. He drove over the N2 and entered the gravel road.

They had just done so when they found their way blocked by the three vehicles that preceded them. The stationary vehicles’ doors were open and the occupants were outside. There were many and they were armed with rifles and immediately opened fire on the security vehicle. It would not be an overstatement to say that the security vehicle was riddled with bullets. The testimony of Ntombela and Nkabinde in that regard is supported by the photographic material placed before us, which shows substantial damage to the windscreen, the windows and bodywork of the security vehicle. The deceased was fatally injured during the fusillade directed at the security vehicle and the occupants. On the scene of the shooting the deceased had bled profusely in the back of the bakkie and the ground next to it before he died, which explained why Nothile Masango was able to discern it immediately upon seeing the back of the vehicle. Ntombela managed to flee into the plantation, whilst Nkabinde, who was with the injured deceased, took shelter behind the security vehicle. When the shooting was over he tried to assist the deceased but to no avail.

Ntombela at that stage observed the bogus police Combi and the Telkom Colt leaving at high speed, fleeing to the south on the N2.Policemen later arrived on the scene where the deceased was shot. While they were there, the headlights of other vehicles suddenly entered the dirt road on which they were.Nkabinde and the police with him fled into the plantation. It transpired that the arriving motor vehicles were driven by the Flying Squad, who had been called to the scene.

An autopsy subsequently performed on the body of the deceased confirmed that the cause of his death was a gunshot wound. As in the case of Biyela, the policeman at Charters, the barrage of rifle fire directed at the security guards was not fired in terrorem. The direction, position of the bullet damage on the vehicle, coupled with Nkabinde’s evidence, leaves no room for any reasonable doubt as to the intention of the assailants. They shot to kill. As in the case of Biyela at Charters, the security officers at Penicuik were obviously perceived to pose a threat to the robbers. The shooting at Biyela and the security guards are in sharp contrast to the other encounters between accidental bystanders and the robbers at, for example, Penicuik.

The Masangos and Msweli and his passenger were not summarily fired upon by the robbers, who confronted them. So too the enfilade of gunfire from the robbers preparatory to robbing the Fidelity vehicles at Charters and Penicuik. The many shots fired there were clearly in terrorem and not directly intended to kill the occupants of the Hi-Ace.

We are accordingly satisfied that the State has succeeded in proving beyond all reasonable doubt that Gumede had been murdered by persons who were part of the attempted robbery at Penicuik.

THE ATTEMPTED MURDER OF SECURITY GUARDS NKABINDE AND NTOMBELA – COUNTS 22 AND 23:

These counts arise from the barrage of rifle fire directed at the Maxim security vehicle in which the two guards Nkabinde and Ntombela, as well as the deceased, Gumede, were occupants. As found in the case of Gumede, dealt with above, the fire directed at the vehicle was done with the intent to kill and consequently the State has succeeded in proving beyond all reasonable doubt that the perpetrators of the attempted robbery at Penicuik attempted to murder both Nkabinde and Ntombela.

CONCLUSION

On a conspectus of the evidence led by the Prosecution, as summarised, and correlated with the Indictment thusfar, we conclude that the State has succeeded in proving beyond reasonable doubt that, save for those charges in the counts singled out earlier, the commission of the individual crimes, which form the subject-matter of the charges dealt with relating to the primary and secondary offences at Charters and Penicuik – in the sense that the pre-requisite actus reus or criminal conduct which constitutes each relevant offence, has been proved. What remains to be considered is, as mentioned, the identity and criminal liability of the perpetrators of those offences.

That is what we turn to in the next phase of this Judgment.

THE IDENTITY OF THE PERPETRATORS

As pointed out earlier, the evidence relied upon by the State to prove that the accused were the perpetrators of the crimes found to have been committed as analysed and collated in the preceding phase of the Judgment, is entirely circumstantial. No so-called direct evidence was placed before us identifying or implicating any of the accused as a perpetrator in any particular offence.

Direct, as opposed to circumstantial evidence, is evidence which a person gives relating to what he perceived through his senses, the accused person did relating to the crime charged to him. In that case the witness relates what he saw, heard and felt the accused person do, as one would expect, for example,in the testimony of the complainant in a rape case. I have had occasion to entertain evidence of a complainant, who claimed that, apart from hearing, seeing and feeling the accused, she smelled him.I confess I have yet to hear evidence where the witness claims to have tasted the accused.

On the other hand, circumstantial, as opposed to direct evidence, is evidence of the surrounding facts from which a Court may, within certain parameters, infer the guilt of the accused person in respect of the offence charged to him.

The examples used by the Roman Dutch writers, whose writings constitute the fount of our Common Law,graphically demonstrate the difference between direct evidence and circumstantial evidence. Somewhat liberally paraphrased it amounts to this:-In a murder case a witness would testify that he saw the accused run the unarmed deceased through with a sword withdraw the sword, now stained with blood, and wipe the blade on the clothes of his victim for good measure. That is direct evidence of murder. Where, however, the witness testified that he stood outside the only door of a room and heard a heated argument inside. He identified the voices of the deceased and the accused, both raised in anger. He heard the deceased scream and immediately after, the accused emerged with a sword in his hand dripping blood. The deceased staggers out clutching his blood-covered chest. He collapsed and died. That constitutes circumstantial evidence.

The witness did not see the accused stab the deceased, but that the accused did so, may be inferred from the circumstances described by the witness.

The parameters within which circumstantial evidence is applied and evaluated, will come up for consideration later.

SUSPECT MOTOR VEHICLES

The first touchstone in the chain of circumstantial evidence arose at about 4am on 2 October 2006, when a pivotal witness in the State’s case encountered four “suspicious looking” motor vehicles driving towards Empangeni on the provincial road R34. Sithole was a tactical support officer employed by Fidelity at its base office at Richards Bay. He lived at Eshowe and travelled daily from home to work and back in an unmarked company vehicle. On this day he departed from home at 3.30am using the R66,and at Nkwaleni, a well-known mountain pass, he turned onto the R34 which routes through Empangeni and from there becomes the John Ross Highway which passes under the National road N2, known as the John Ross bridge, just east of Empangeni and leads on to Richards Bay.

Whilst on the R34 in the vicinity of a place called Jabulani, some 25 kilometres from Nkwaleni, he came across a 7-series BMW, described by the witness as the “old model”, greyish in colour, bearing a Gauteng registration and which was travelling in the same direction as he. He passed it and found himself behind a white Nissan bakkie. His impression was that the BMW and the Nissan were travelling in tandem. As will appear later, the relevant area is close to and within the cellphone reception boundaries of the Horseshoe Sugar Estate cellphone tower.

His suspicions were aroused because the occupants were only adult males – eight of them – together with the fact that three weeks earlier a cash-in-transit heist involving a Fidelity vehicle occurred in that area, in which a similar type of BMW was used in capsizing the Fidelity vehicle transporting the cash. We have the impression that Sithole was alert to anything out of the ordinary and naturally suspicious, given his job description. It was his function,inter alia, to plan the routes to be taken by the Fidelity vehicles conveying cash and was required to do so with the safety of the crew and the security of the cash-in-transit in mind.

Whatever the cause, Sithole recorded the registration number of the Nissan on a piece of paper and later transferred it to his diary as NRB 32980. He did not record the number of the BMW, as he had passed it before his suspicions were aroused.

About one kilometre on Sithole caught up with two further motor vehicles apparently travelling together – a white Mercedes Benz C class and another BMW similar in type, appearance and colour as the one first encountered. Both had Gauteng registration numbers and between the two vehicles carried six adult male occupants. His suspicions doubly aroused, Sithole recorded the registration numbers of both vehicles;the Mercedes Benz as RZF 712 GP and the second BMW as KRY 631 GP. Other distinctive features of the vehicles were that one of the rear tyres of the Mercedes Benz intermittently emitted sparks on the road as if the tyre was worn down to the steel mesh underlying the rubber outer surface. The BMW had a white material cover over the petrol inlet – as if the protecting flap usually found there was missing or broken.

Sithole passed those vehicles also, but kept them in sight in his rear-view mirror. At the outskirts of Empangeni he pulled into a side-street and allowed the vehicles to pass. The four motor vehicles were now travelling together, closely following each other. Sithole turned in behind the vehicles and followed the cavalcade into Empangeni. At the first robot-controlled intersection the leading three vehicles in front passed through, but the fourth, a BMW, pulled up as the traffic light had turned red. When the light changed the BMW sped away until it caught up with the other vehicles. In the meantime Sithole had phoned the South African Police Control Centre, Empangeni and furnished the lady, who took his call, with details of the motor vehicles. She responded that none of the registration numbers were those of motor vehicles that had been reported stolen, but that one of the registration numbers furnished to her by Sithole belonged on a Fiat Uno vehicle. That vehicle cannot, by any stretch of imagination, be confused with a BMW, a Mercedes Benz or a Nissan bakkie and Sithole’s suspicions were confirmed.

In the meantime also, Sithole had informed a colleague at the Richards Bay Fidelity base of his observations and requested him to contact the police station at Empangeni as the R34 passes right in front of it, and to convey all the information to them. The idea was to cause the police to stop the vehicles as they passed in front of the police station. Nothing came of that however. Sithole was informed by his colleague that no one at the Police Station answered the telephone.

Sithole continued to follow the motorcade and at an intersection further on, the hindmost BMW was forced again to stop at the red robot, while the others drove on. Sithole stopped behind that vehicle and noticed a back-seat passenger close the rear window’s blind. Once more the BMW sped away and caught up with the suspect convoy. Sithole followed at an appropriate distance. Thus the convoy continued through Empangeni onto the John Ross highway towards Richards Bay, followed by Sithole. On the way Sithole tried to phone a certain Kevin Govender, a Fidelity “investigator” but received no answer.That was at plus-minus 04:25, he estimated.

In this way Sithole followed the convoy through Richards Bay to Meerensee, a suburb, and eventually to Mzingazi, another suburb of Richards Bay, with Sithole, still following, exercising fitting circumspection. Thus he discovered that the vehicles had all turned into a homestead which turned out to be that of accused 24. The vehicles in question were parked in the yard of the premises. Sithole withdrew and phoned the Richards Bay Police Station. He explained what had transpired, but was told that they were changing shifts and could not send assistance. Sithole gave up and went to his office.

From there he once again contacted the Richards Bay Police Station and explained the reasons for the call. He was told that the Police had only two members available to assist. He agreed a place to meet with those and did so. Sithole explained everything to the two policemen. When Sithole informed the police members of the number of persons in the suspect vehicles,they refused to go to accused 24’s house, saying that they were afraid as there were “a lot of people there”. The police left saying that they would “fetch back-up”. Needless to say, nothing came of that and Sithole returned to his base. It was now about 07:30.

At about 08:30 Sithole, from his workplace, once again sought help from the Company Investigator, Govender. The outcome of that communication was that, through Govender, Sithole got in touch with a certain Inspector Fourie,said to be stationed at Richards Bay Police Station. He told the inspector what he knew. Fourie, in turn, informed Sithole that the police had information that a Fidelity vehicle might be robbed at the Richards Bay Post Office and that they were on the look-out for motor vehicles similar to those described by Sithole to them, adding that he believedhe knew the homestead that Sithole referred to.

On that note Sithole returned to work at the Fidelity base. However later that day, not being satisfied with the way things were turning out, Sithole drove to Empangeni and from there along the R34 to the area where a Fidelity vehicle had been robbed previously. He had just passed through Empangeni on his way, when he received a report of the robbery at Penicuik on the N2. He hastened there, arriving at the scene of crime at approximately 19:15.There he observed the capsized Dyna and the scene as described earlier.

The BMW with which the Dyna had manifestly been rammed, he recognised as one of the motor vehicles he had encountered on the R34 during the early hours of that morning. Sithole’s identification of the relevant BMW is unquestionable and includes a reference the white cover over the petrol inlet. He also discovered that the registration plates of the vehicle had been changed and found a registration plate, the number of which he had recorded, on the rear seat inside the vehicle. While still at the robbery scene Sithole was informed of the abandoned motor vehicles at the murder scene on the gravel road in the plantation referred to earlier. When he arrived there he saw the the Nissan bakkie, which he had encountered on the R34.Here too his identification of the vehicle was indisputable,the Nissan bakkie still bore the registration numbers which he had recorded. At that point he also observed the blood on the ground where the deceased had died.

Whilst still at the Penicuik scene of crime, Sithole received a report of the robbery at Charters and proceeded there. Sithole arrived at Charters at about 19:25.It would appear that it took him 10 to 15 minutes to drive to Charters from Penicuik.

He was met by the sight already described in this Judgment. There he also identified the white C Class Mercedes Benz, stationary behind the police bakkie which, according to the evidence, was where the exchange of gunshots occurred between Constable Biyela and the robbers. He identified the Mercedes Benz as the one he had encountered on the R37 as part of the convoy. It had the same worn right-rear tyre, which caused the sparks on the road surface that he had observed. The steel mesh was indeed exposed. The registration plate had been changed, but upon inspection, it was found that the “new” registration plate had been adheased over the number plate which he had observed and recorded. The Fidelity Inspector, Govender, arrived at Charters also. He introduced Sithole to Captain Mncube of the South African Police. Sithole related to him all he knew of up to that stage. Captain Mncube and Govender requested him to take them to the house at Mzingazi where the suspect vehicles had gone. Sithole duly took them there. Having been shown the house in question Captain Mncube and Govender dropped Sithole at an arranged spot at Meerensee and returned to the house again.

The time then was about 22:30. Sithole returned to the Fidelity office to await reports on any further development and in order to arrange for breakdown vehicles to remove the disabled Fidelity vehicles from the respective scenes of crime. Well after midnight, during the early hours of 3 October 2006, Sithole was informed of the arrest of the suspects at the tollgate at Mvoti Plaza on the N2 at Stanger. Govender, who was at the scene of arrest requested Sithole to come there and collect three “smart” boxes which could only be opened with dedicated electronic equipment at the Fidelity base at Richards Bay. Accompanied by a colleague, Sithole in due course collected the boxes and returned to his offices at Richards Bay. There the money from the boxes was counted and found to be in the sum of R136 170-00. The cash was locked in a safe at the base, but could not be exhibited to the Court as it was subsequently stolen from there.

PURSUIT AND ARREST

Govender’s evidence echoes that of Sithole up to the point where Sithole had shown them accused number 24’s house at Mzingazi. Govender was in a Corsa bakkie with Captain Mncube as passenger. On approach to the house in question, a dark BMW came from the front from the direction of accused 24’s homestead. It had bluish/white (bixenon) headlights. The road was too narrow and Govender turned off to allow the approaching BMW to pass. After that Govender continued towards the homestead. Before reaching the driveway to the premises, a white Toyota Hi-Ace Combi came out of it and turned into the road in the same direction as Govender was facing. It was raining at the time. As Govender drove by slowly he observed motor vehicles in the yard, apparently readying to leave.A dark coloured BMW was reversing out of the yard and yielded for Govender to pass and a blue Hyundai sedan parked in the yard, appeared to be idling. Govender also observed a red Toyota Hi-Ace Combi parked further into the yard. He testified further that a large number of black males stood around the vehicles. He estimated that there were between twenty to thirty men.

There were three men at the gate of the premises, one of whom appeared to be observing the Corsa closely. One of the men near the gate was distinctive in appearance. He sported dreadlocks and was wearing jeans. This was about 23:00.

During this time Mncube was “frantically” trying to reach the police emergency call centre at telephone number 10111, but received no answer. Contemporaneously Govender kept the white Combi in sight. The white Combi stopped at a T-junction and Govender followed suit. When that vehicle turned to the left, Govender followed it. By then he and Captain Mncube had noticed that the Combi was crammed with adult males. Though he kept on trying, Mncube could not get the police to answer their phones.Mncube succeeded in alerting the “flying squad”, then on patrol, and arranged to meet them at a garage in Empangeni, as the white Combi they followed appeared to be going that way on the John Ross highway. At a point on that road shortly before the N2, which crosses over iton the John Ross bridge,and, ostensibly to avoid alerting those in the Combi, Govender overtook it but kept sight of the vehicle in his rear-view mirror. He saw the Combi turn towards the south onto the N2 – in the direction of Durban.

Govender proceeded to meet up with the flying squad at the Caltex garage at Empangeni, plus-minus 2 kilometres from the N2. At the garage a flying squad vehicle arrived, shortly thereafter followed by another flying squad vehicle. The situation was briefly explained to the police manning the squad cars. Captain Mncube transferred to one of the squad cars and a high speed pursuit followed. The squad cars turned onto the N2 south, being the direction the white Combi had taken. Eventually on the N2 he contacted the Durban Police and requested their help. Govender followed with his bakkie, keeping in constant touch with Captain Mncube, both using cellphones.

At the Mtunzini Tollgate, south of Empangeni on the N2, they were informed that the white Combi had already passed through. They continued and at Zinkwazi, just south of the Tugela river, they caught up with the white Combi they were pursuing and from that point followed behind it as it continued south on the N2. It was decided that the best place to stop the Combi would be at the Mvoti Toll Plaza just south of Stanger.

At the tollgate only one lane was in use and a petrol tanker, which was about to pass through, was instructed to remain where it was, thus effectually barring the gate.

The Combi came to a stop behind the tanker. The police vehicles activated their sirens and police lights and stopped right behind the Combi, thereby efficiently corralling it. The police, armed with assault rifles and handguns surrounded the cornered vehicle. The occupants were ordered to get out one at a time with their hands raised. A minute or more passed without any response in what Govender described as a “stand-off of 2 to 3 minutes”. Then the driver of the white Combi, accused number 24, emerged with his hands raised. He was followed by 13 others who stepped from that vehicle one by one with arms aloft. As the occupants came out they were first searched “patted down” for any hidden firearms and were then made to lie prone on the ground where their hands were cuffed behind their backs. More police vehicles arrived on the scene.

What descriptively follows is a composite of the evidence of a considerable number of chiefly police witnesses, each testifying according to his own perspective in intense and dynamic circumstances, rendered even more difficult by the pouring rain, whichintermittently inundated the scene of arrest. What we find heartening, in the light of the inert incompetence of the police in response to the desperately needed help by Sithole to begin with and later Mncube and Govender, as recounted earlier, was the thoroughness and commendable competence with which the arrests, search and collection and recording of exhibits carried out on the scene of arrest and, later, at the offices of the Organised Crime Unit at Cato Manor, Durban. The professionalism displayed at the scene of arrest is of the highest order, more so, given the extremely difficult circumstances in which the police had to work.

I now turn to the evidence of Captain Mncube,an officer in the Organised Crime Unit, Richards Bay. As mentioned earlier, his testimony parallels that of Govender. His role began when, within a relatively brief period of time he received consecutive reports of the Penicuik and Charters robberies respectively.

He went to Penicuik first and there came upon the scene detailed earlier in the Judgment. There he was joined by Govender and together they proceeded to the Charters scene of crime. The Forensic Field examiners were already busy mapping the scene. He confirmed that money bags, some empty and some with money in it were recovered in and around the Fidelity Hi-Ace, indicative of the haste with which the robbery ended, as remarked upon earlier. Govender introduced Sithole to him. The latter recounted his encounter with the suspicious looking motor vehicles on the R34, one of which was apparently abandoned at the Charters scene of crime, which he pointed out to Captain Mncube, concluding with Sithole’s shadowing and observing the vehicles in question, ending up at accused 24’s homestead at Mzingazi.

It was arranged that Sithole would point out the house to them. From this point on his testimony mirrored that of Govender, adding that he recorded the registration of the BMW which was in the proximity of the gate of accused 24’s house.

As testified to by Govender, Captain Mncube confirmed the arranged meeting with the flying squad vehicles at the garage at Empangeni. Captain Mncube joined the vehicle driven by Inspector Herbst and the three vehicles departed in pursuit of the white Combi. They caught up with the Combi in the Mandini area on the N2 and thereafter followed it to the Mvoti Tollgate, where they had decided would be the best place to stop the pursued vehicle. At the Tollgate Inspector Herbst used a loudspeaker to order the Combi to stop. The Combi came to a halt. Captain Mncube observed the occupants seated in the back discarding money back over the seat and onto the floor of the vehicle. Indeed, later some R80 000-00 in R100 notes were found on the floor of the Combi after the occupants were evacuated from the vehicle. Captain Mncube claimed that he identified accused number 3 as one of the persons, who discarded money in that fashion. However, given the circumstances in which the purported identification of accused number 3 took place, which were hardly conducive to a reliable snap identification, no reliance can be placed thereon.

Captain Mncube confirms Govender’s evidence relating to the securing of the occupants of the Combi face down on the ground. Captain Mncube assumed control of the scene of arrest. Speaking in Zulu, he informed the erstwhile occupants of the Combi that they were under arrest for the robberies which occurred in the Mtubatuba area and thereafter explained their constitutional rights to them.

At about this time members of the Dog Unit operating from Durban arrived on the scene, having been summoned to assist by Captain Mncube while still under way to the Mvoti Toll Plaza. Captain Mncube instructed the Flying Squad and Dog Unit members to be on the lookout for the BMW which he and Govender had encountered at accused 24’s homestead, the registration number whereof he had recorded. The next motor vehicle, a blue Hyundai sedan, to arrive on the scene, was stopped by those members. They called Captain Mncube to the vehicle and pointed out to him 3 fidelity “smart boxes” in the rear, which Govender identified as Fidelity property.

Captain Mncube also recognized the Hyundai as one of the motor vehicles he had seen in the premises of accused 24’s homestead when he and Govender drove by, as mentioned before. Accused 14 was the driver of the Hyundai and accused 19 the only passenger. He recognized accused 19 because of his “dreadlocks” and dress, which he had observed in the vicinity of the gate of accused 24’s house when they drove past it. On the floor of the vehicle the Rossi .38 revolver, which had been robbed from the crew of the Hi-Ace at Charters, was discovered and in the cubbyhole in front of the passenger seat an ABSA money bag with money in it. The third motor vehicle to be stopped and detained on the scene of arrest was a red Toyota Hi-Ace Combi driven by accused number 12. There were 4 passengers in it – accused 5, 7, 16 and 22. A search of the interior revealed “money bags” and “money all over the floor”. When counted later, it was found that the money totalled the sum of R30 296-00.

The BMW, which Captain Mncube had been expecting, was the final motor vehicle to arrive. Accused 8 was the driver and accused 1 and 20 the passengers. The BMW was searched and accused 1 had in his possession a Fidelity drop-safe bag, which was subsequently properly identified as having been a bag utilized by Baobab Service Station and which was in the Fidelity Hi-Ace when it was robbed at Charters. In the cubbyhole a 9mm pistol and license thereto was found, together with an identity document, later established as being the property of accused 14.After the BMW was stopped and while its occupants were being arrested, the police, who were awaiting the possible arrival of further vehicles associated with those in arrest, observed a VW Golf vehicle on approach to the scene of arrest. It came to an abrupt stop, turned around and sped away at high speed. It disappeared out of sight before the police could mount a chase. Govender testified that he saw the lights of that vehicle in the process of turning and leaving the scene.

In all 24 of the 26 accused were apprehended and arrested at the Mvoti Toll Plaza. As they were taken from the various motor vehicles, they were superficially searched for weapons, as were the vehicles. This was followed by a full search of each of the accused and the respective vehicles in which they were. Thattook place later. However, during the “pat down” search large quantities of money were found in the clothes of some of the accused, but left in place,awaiting the arrival and tasking of the investigation team from the Organised Crime Unit, Durban, who were on the way.

After the arrival of sufficient numbers of the investigation team, a proper and methodical search of the erstwhile occupants and their vehicles followed. Whatever items the search of the persons of the accused yielded, were described and recorded on the scene by, inter alia, Inspectors Mostert and de Bruyn, Captain van Tonder, Captain Mncube and Inspector Dean. Comparison of the relevant notes during the course of cross-examination, revealed that they were basically the same.

The items found in possession of each of the accused were placed in a transparent “exhibit” bag with the name of the accused on a label that was part of the material of the bag itself. Each exhibit bag had its own designated serial number. Each bag was sealed and thereafter placed in Inspector de Bruyn’s vehicle. All of that took place in the presence of the accused,albeit that they were face down on the ground next to the vehicle which they had arrived in.

Likewise, except for the bags with the firearm and angle grinder, all items found in each of the captured motor vehicles were described and recorded and placed in exhibit bags relating to each particular motor vehicle. These too were placed in Inspector de Bruyn’s vehicle.

Upon completion of the searches and processing of the exhibits found, the accused and the motor vehicles in which they had travelled, together with the police vehicles were driven in convoy to the Cato Manor Offices of the Organised Crime Unit. By then it was already daylight on 3 October 2006.

On 4 October 2006 Captain Mncube, Inspector Ntombela and others were dispatched to conduct a search of accused 24’s homestead at Mzingazi. In a bucket in one of the toilets in the house they discovered a substantial number of empty stop loss bags, P- bags, First National Bank (FNB) deposit slips and a “bulk receipt” from the same bank. In all some 51 separate items of the nature described, were thus found. As mentioned,subject to a few exceptions,during the trial, no piece of evidence however small or formal in nature was admitted or allowed onto the record as common cause between the accused and the State. As a consequence, every receipt, deposit slip, P-bag or Stop Loss Bag found in the house of accused 24, was proved in evidence by employees of the Fidelity client to which the items in question belonged. It was accordingly labouriouslyproved that the mentioned bags and money in it and the deposit slips and receipts relating thereto had been handed to Fidelity and were in the Fidelity Hi-Ace, when it was capsized and robbed at Charters. Those items were exhibited to the court and inclusively marked SS1 to SS51.

Also discovered at accused 24’s house, was a bullet-proof vest and an assortment of motor vehicle registration plates.The latter appears significant; bearing in mind the number of false registration plates found at Penicuik and Charters.

It is common cause that accused 25 was shot and injured during the early evening of 2 October 2006. However, the circumstances in which that occurred is in issue and will be addressed in due course. While he was in the hospital being treated for the gunshot wound, he was duly arrested and charged by the Investigating Officer,Lt-Colonel van Rensburg on 5 October 2006.

On 14 October 2006 accused 26 was arrested by Captain Mncube and Inspector Ntombela at Ngwelezane near Empangeni. During the course of the arrest accused 26 fled and was pursued by the officers. While giving chase, Captain Mncube and Inspector Ntombela became separated. After a long chase, Inspector Ntombela fired a warning shot, calling upon accused 26 to stop.

The accused did not heed, but seemed to tire and then stop. Inspector Ntombela kept his service firearm pointed at accused 26, who started advancing upon him and continued to do so notwithstanding repeated warnings to stop. At that stage a motor vehicle pulled up behind Ntombela, which caused him to turn to look behind. When he did so, accused 26 continued to come at him. Ntombela then fired a shot at the lower body of accused number 26. At the same time the occupant of the vehicle also shot at the accused. In this shooting accused 26 was injured, but not seriously. Captain Mncube,who had by then arrived, again formally arrested accused 26 and explained his Constitutional rights to him. As he was handcuffing accused 26 Inspector Ntombela noticed grazes on the former’s wrists. He enquired about those and accused 26 responded by saying that he had paid an “Inyanga” who promised him that he would not be arrested “for this particular case”. Thereafter accused 26 was removed to hospital by ambulance. It appears that the motor vehicle,which came up behind Ntombela,was driven by another policeman, who happened on the scene and tried to assist. Between Ntombela and the other policeman it was uncertain who shot and injured the accused.

THE PHYSICAL EXHIBITS RECOVERED

Where, as here, the case sought to be made out against the accused, is based on circumstantial evidence, the various items found on the persons of the accused on arrest and in their vehicles, play a revealing role and, in a sense, tell their own story.

Concerning items recovered from the persons of the accused, it would be appropriate to deal with the groups of accused who were travelling together in the same vehicle, when they were stopped and arrested, followed by what was found in the relevant vehicle.

The White Combi – The 14 occupants had the following in their possession:

Accused 24 (the driver) – 2 cellphones and R4 040-00 in cash.

Accused 9 (the front seat passenger) – 1 cellphone and R28 640-00 in cash.

Accused 2 (rear passenger) – 1 cellphone and R44 300-00 in cash and a drop-safe bag which was identified by the witness, Mr Smalman, as a Petroport filling station bag handed to the crew of the Fidelity Hi-Ace,which was robbed at Charters shortly thereafter.

Accused 3 (rear passenger) – 1 cellphone and R23 550-00 in cash.

Accused 4 (rear seat passenger) – 2 cellphones and R2 770-00 in cash.

Accused 6 (rear seat passenger) – 1 cellphone and R7440-00 cash.

Accused 10 (rear seat passenger) – 1 golf glove and R23 030-00 cash.

Accused 11(rear seat passenger) – 1 cellphone, one pair of woolen gloves and R34 450-00 cash.

Accused 13 (rear seat passenger) – R1 250-00 in cash.

Accused 15 (rear seat passenger) 1 cellphone, a balaclava cap and R3 710-00 in cash.

Accused 17 (rear seat passenger) – 2 cellphones, one pair of gloves and R22 230-00 in cash.

Accused 18 (rear seat passenger) – 2 cellphones and R4 350-00 in cash.

Accused 21 (rear seat passenger) – 1 cellphone and R370-00 in cash.

Accused 23 – 1 cellphone and R3 650-00 in cash.

In the white Combi itself was found:-

• A large black bag with a heavy petrol driven angle grinder in it.

• A large black bag with 3 automatic assault rifles in it – two AK 47’s and one LM5.

• 2 Pistols with the serial numbers erased – one found under the driver’s seat and the other lying loose behind the driver’s seat on a type of console.

• 5 Single gloves. One of those had blood on it. A properly performed DNA comparison test established beyond any doubt that the blood stains on one glove came from accused 25, who by that time was already in the Prince Mshiyeni Hospital at Durban.

• Another glove established through DNA comparative tests as belonged to accused 23.

• Apart from the 2 pairs of gloves found on the persons of accused 11 and 17 respectively, 4 further pairs of gloves were found loose in the vehicle.

• 2 balaclavas, one of which was through DNA tests established to have sweat, emanating from accused 25, on it.

• A black cap, towel and cloth.

• In the rear passenger area cash in the form of notes was found strewn all over the floor totalling R79 990-00.

• Notably not a single piece of luggage was found in the vehicle.

The Blue Hyundai – the two occupants had the following on their persons:

• Accused 14 (the driver) – 1 cellphone and R13 400-00 in cash.

• Accused 19 (left front passenger) – 1 cellphone and in the cubbyhole in the panel in the front of the seat,where he had been sitting, an ABSA Bank Arboretum bag containing R28 430-00 in notes, which the police assumed was his and included it into the exhibit bag assigned to accused 19 on the scene of arrest. On his person was also found a FNB deposit slip, which accompanied the money handed to Fidelity by the Spar Grocer at Ingwavuma and which was in the Hi-Ace when it was robbed at Charters.

In the Hyundaiitself–

• 3 unopened (and charged) Fidelity smart boxes with money in them and which had been robbed from the Hi-Ace at Charters. On one of the “smart” boxes, the palm-print of accused 17 was properly lifted and proved, although accused 17 himself was a passenger in the white Combi at the time of his arrest.

• About R2 500-00 in cash on the floor of the vehicle.

• The .38 Rossi revolver belonging to Fidelity and which was taken during the course of the robbery in the Hi-Ace at Charters

• 2 pairs of gloves.

• A grey bag with anti-biotics, a toothbrush and toothpaste. The toothbrush was shown through DNA tests, as being that of accused 19.

• A shirt, jacket and black cap, lying loose in the vehicle

• Not a single piece of luggage was found in the vehicle.

The Red Combi-the 5 occupants had the following on their persons

Accused 12 (the driver) – R2 530-00 in cash.

• 3 cellphones, one of which belonged to accused number 7, who was in the same vehicle.

Accused 5 – 1 cellphone and R23 100-00 in cash.

Accused 7 – 1 cellphone and R42 550-00 in cash.

Accused 16 – a cellphone and R22 900-00 in cash.

Accused 22, also known as “Fono” – a cellphone and R710-00 in cash.

In the red Combiitself was found – R30 296-00 loose on the floor of the vehicle – a blanket, black hat and a blue beanie, together with a toothbrush and toothpaste.

Again not a single piece of luggage was found in the vehicle.

The Blue BMW – The three occupants had the following on their persons:

Accused 1 – 1 cellphone, a drop-safe bag, which eventuated from the Baobab service station and which was in the Hi-Ace, when it was robbed at Charters.

• R56 000-00 in cash.

Accused 8 – 1 cellphone and R21 000-00 in cash.

• 1 pair of gloves.

Accused 20 – 1 cellphone and R35 890-00 in cash.

In the Blue BMWitself was found:

• A Standard Bank and Stop-card card with the name of accused 5 on it, although accused 5 himself was arrested in the red Combi.

• A pistol licenced to accused 14, together with the firearm licence and accused 14’s Identity book, although accused number 14 was arrested in the blue Hyundai.

• 1 black and 1 purple woollen cap.

• 1 pair of gloves.

Again, as in the case of all the other vehicles, not a single piece of luggage was found in the BMW.

THE OFFICE OF THE ORGANISED CRIME UNIT AT CATO MANOR

As mentioned earlier when the necessary investigation at the scene of arrest at Mvoti Tollgate Plaza, which included the police forensic fieldwork, e.g. looking for fingerprints and taking of photographs, the whole collective of the arrested accused, their motor vehicles and exhibits recovered, were removed to the offices of the Organised Crime Unit at Cato Manor, Durban.

There the sealed exhibit bags were opened in the presence of the accused, one at a time, with no particular sequence in mind and the contents thereof taken out and recorded. The money found on the respective accused, as aforementioned, were counted and each accused was requested to sign a so-called SAP 299 – whereby he consented to the money found in his possession, as noted earlier, being handed to Fidelity Cash Management Services, represented by the said Govender, to be kept and produced as exhibits, if called upon to do so. Those forms serve before us as the “Exhibit PP” series.

Accordingly, all the cash found in possession of the accused at the scene of arrest, was dealt with in this way. Whilst some of the accused testified that they were simply told to sign the mentioned forms and did so, without realizing the purport thereof, we are satisfied that each accused signed Exhibit PP applicable to him, freely and voluntarily and without being unduly influenced thereto and with full knowledge of his Constitutional rights and the import of their signed consents. Throughout these drawn-out proceedings and in testimony, the accused have presented as intelligent and sophisticated and we are satisfied that they knew exactly what they were doing. In this regard it is to be noted that none of the accused objected to “his money” being handed to Fidelity. In turn, the items found in the respective vehicles, i.e. the white Combi, the Hyundai, the red Combi and the BMW, were taken out of the exhibit bags in which they were sealed on the scene of arrest and displayed to the accused and the contents thereof noted.

When the import of the exhibits discovered, as aforementioned, is considered, it is to be borne in mind also that Fidelity Drop-cash and P-Bags, together with deposit slips,etc.directly linked to the Charters robbery,were found in the house of accused 24 at Mzingazi.

The next step is to consider the significance of the arrests and recovery of the exhibits in relation to the two Fidelity robberies and associated offences.

Were the four vehicles in which the accused were travelling, travelling independently of each other and without knowledge of the occupants in any given vehicle of the other vehicles and their occupants, as claimed by all of the accused?

In our view there can be no doubt that the four vehicles and their occupants were travelling in concert and collaboratively, although not in convoy.

The accused in the motor vehicles had some collective destination in mind in Durban or its vicinity,bearing in mind that the three smart boxes in the Hyundai were armed and had to be opened within a particular period of time, lest an internal explosive device be set off, which would stain the money in it, rendering it commercially useless, as explained by Govender in his testimony.

We base our conclusion on the following.

1. The evidence clearly establishes that the four vehicles in question and all the accused who travelled in them, were gathered at and departed from the house of accused 24 at Mzingazi. Govender saw the vehicles at the premises and described them. Captain Mncube who was with him recorded the registration number of the BMW and alerted the police at the Mvoti Tollgate Plaza to be on the lookout for that vehicle. Govender and Mncube followed the white Combi from accused 24’s house up to the N2 south and later caught up with it on the same road and followed it to the Plaza. The certainty accompanying the identification of the white Combi and the BMW lends added credence to Captain Mncube’s claim that the blue Hyundai and the red Combi were in the premises of accused 24’s homestead when they drove by and commenced following the white Combi.

2. In the four vehicles themselves evidence was found, which interlinked the vehicles and occupants. The palm print of accused 17, who was in the white Combi, was found on one of the smart boxes in the blue Hyundai; the bank and stop-cards belonging to accused 5, who was a passenger in the red Combi, was found in the blue BMW; accused 14’s pistol, licence and identification book were found in the blue BMW, whilst he was in the blue Hyundai when he was arrested; apart from the money, other items that were robbed from the Hi-Ace at Charters were found in the white Combi, the blue Hyundai and the BMW. Thus accused 1 in the BMW had in his possession a Fidelity drop-safe bag emanating from the Baobab filling station; accused 2 (in the white Combi) had in his possession a Fidelity drop-safe bag emanating from Petroport Filling Station; in addition to the Fidelity “smart” boxes in the vehicle with them, accused 19 (in the Hyundai) had in his possession a FNB deposit slip emanating from the Spar grocer at Ingwavuma.

3. In the context of the afore going the angle grinder found in the white Combi assumes some significance. It will be recalled that a sound similar to that of a motorized angle grinder emanated from the capsized armoured Fidelity vehicle at Penicuik, whilst the hinges of the rear door thereof showed very clear signs of scouring consistent with the use of some sort of cutting tool. In the absence of a plausible innocent explanation of the presence of the grinder in the white Combi, which was not furnished or suggested, everything points to the grinder having been used at the Penicuik scene of crime; three unopened Fidelity smart boxes were found in the Hyundai, with accused 17’s palm print on one of them; accused 25’s glove and balaclava were found in the white Combi. In this regard we are left in no doubt that accused 25 was shot and injured by Constable Biyela at the scene of crime at Charters. It will be recalled that the assailant whom Constable Biyela had shot, was bundled into a blue BMW and removed from the scene of the shooting. Inspector Xulu found a similar BMW abandoned plus-minus 1 kilometre from the Charters scene of crime. Blood on and in the vehicle was properly DNA- analysed and compared with a blood sample obtained from accused 25 and found to match perfectly. This, however, is a matter that will be fully dealt with infra. Bearing in mind that the arrest of the accused and the seizure of the vehicles and contents occurred on 2 October 2006, the extraordinary number of gloves found on the persons of some of the accused and in the vehicles in question, seems to us to be significant. So too the number of black caps and balaclavas. The headgear and gloves would obviously be very handy for use in a robbery of this nature. The gloves would leave no fingerprints and the headgear makes identification difficult.

4. The money found on the accused and in the motor vehicles, including the smart boxes totals R661 055-00. On an overview of the evidence summarized supra, there can be no doubt but that the money constituted part of the unlawful proceeds of the robbery of the Fidelity vehicle at Charters and, save for accused 12, was collectively possessed by the 24 accused arrested at the Tollgate. To be sure, in the case of accused 12 and 22 in the red Combi, each was found in possession of a relatively small amount of money. But, there again R30 296-00 was found on the floor of the Combi. Considering that accused 5, 7 and 16 in the same vehicle, was each possessed of a substantial amount of cash, the inference is irresistible thataccused 22jettisoned the money discovered on the floor of the red Combi, when arrest was imminent.As appears later,accused 12 was hired to provide conveyance only.

5. The same reasoning applies with equal force to accused 4, 6, 13, 15, 18 and 23 in the white Combi who had modest amounts of cash on them, but with R80 000-00 spread, in a sense, at their feet all over the floor in the rear of the vehicle,where they were seated.

It is also to be noted that the remaining two motor vehicles, the Hyundai and the BMW, had, save for R2 500-00 no apparently jettisoned money on the floors, but each of the accused in them was laden with cash. For reasons to follow accused 24 appears to be in a different position vis-a vis his passengers in the white Combi.

When the journey of the arrested motor vehicles is backtracked to the point of departure at the homestead of accused 24, the inference is equally irresistible that the proceeds of the robbery at Charters were divided in that house, particularly bearing in mind that on the following day, the empty drop-cash and P-bags and the deposit slips, which had been robbed from the Fidelity vehicle at Charters, were found in a toilet in accused number 24’s house. It stands to reason that accused 24 will have received his share and kept it at his home.

As to the exact nature and reach of the inferences to be drawn from the money and related exhibits found in possession of the accused, the remainder of the evidence presented by the State in support of the charges has to be considered.

6. The data directly obtained for the handsets from the cellphones of the accused, is highly relevant and informative at this point, bearing in mind that all the accused, who testified, claimed that the vehicles in which they were arrested,had done so up to that point independently of each other and that their being stopped at the tollgate together was purely fortuitous.

From the“phonebooks” contained in the handsets of the cellphones belonging to the accused and found in their possession on arrest, it appears with a clarity which admits of no doubt, that the accused who claimed that they, together with the motor vehicles in which they were arrested, had been travelling up to the Mvoti tollgate independently of each other and without knowledge that they were on the same road at the same time and place, were, on the contrary, travelling together as a group with full knowledge of each other.

A brief word concerning the phonebook in a cellphone. It is a facility on the cellphone/handset in which the user may enter and capture for future use, the cellphone – or telephone number of any person or instance he might wish to call.Numbers may also be stored in the SIM card in a handset. In this instance the numbers in both the SIM card and the handset were consolidated to provide the information which follows.In casu, the accused,who had the numbers of co-accused and possible accomplices stored in their phonebooks, did so under a name, nick-name,pseudonym or the like. That, we believe, would indicate some sort of special relationship rather than one en/passant.

There was no other plausible reason advanced or suggested in the evidence or argument for the storage of such information in the phonebook of a cellphone and none occurs to us.

A comparative analysis of the phonebooks of the accused and the evidence of the accused who testified, reveals the following :

Accused 1,was in the BMW and accused 8, who was in the vehicle with him, had reciprocally stored each other’s numbers in their respective phonebooks. The same reciprocity is found between accused 1 and accused 19 (in the Hyundai). In accused 1’s phonebook were stored the numbers of accused 22 (in the red Combi),accused 7 (inthe red Combi),accused 14 (in the Hyundai) and accused 18 in the white Combi.

When accused 1 testified concerning his co-accused whom he knew prior to their arrest on 2 October 2006 he said he knew accused 5 and 7 (in the red Combi).

Accused 8 and 20 (with him in the BMW),accused 14 (in the Hyundai),accused 24 (driver of the white Combi) and accused 26 (arrested later).He omitted to mention accused 19 (in the Hyundai) whose name was in his phonebook and vice versa and accused 18 (in the white Combi) whose name was in his (accused 1’s) phonebook.

Accused 2 was in the white Combi. The number of accused 22 (in the red Combi) was stored in his (accused 2’s) phonebook. In turn,accused 2’s number was stored in the phonebooks of accused 16 (in the red Combi) and also in the phonebooks of accused 9, 21 and 23 (all in the white Combi).

Accused 2 (in the white Combi) testified that he knew accused 7, 16 and 22 (in the red Combi) and accused 9, 11, 15, 21 and 23 (in the white Combi).

Accused 3 was in the white Combi. He and accused 19 (in the Hyundai) and accused 17 (in the white Combi) had reciprocally stored each other’s numbers on their respective phonebooks. The number of accused 6 (also in the white Combi) was stored in accused 3’s phonebook.

Accused 3 did not testify.

Accused 4 – his phonebook revealed no names of relevance and he did not testify.

Accused 5 was in the red Combi. The numbers of accused 7 and 22 (in the red Combi also) were stored on his (accused 5’s) phonebook.

Accused 5 (in the red Combi) said that he knew accused 1 (in the BMW), accused 22 (with him in the red Combi) and accused 25 (arrested later). He omitted to mention accused 7 (in the red Combi) whose name was in his phonebook.

Accused 6 was in the white Combi. The number of accused 17 (also in the white Combi) was stored in his (accused 6’s) phonebook.

Accused 6 testified that he knew accused 3 and 17 (in the white Combi with him).

Accused 7 was in the red Combi. On his phonebook was stored the number of accused 13, also known as “Kehla”, (in the white Combi).

Accused 7’s number was stored in the phonebooks of accused 1 (in the BMW),accused 5 (also in the red Combi),and accused 22 (also in the red Combi),accused 19 (in the Hyundai) and accused 11 (in the white Combi).Accused 7 (in the red Combi) testified that he knew accused 12 (in the red Combi with him). He omitted to mention that accused 1 (in the BMW), accused 5 and 22 (in the red Combi with him), accused 19 (in the Hyundai) and accused 11 (in the white Combi), all of whom had his (accused 7’s) number stored on their phonebooks and accused 18 (in the white Combi) whose number was stored on his phonebook.

Accused 8was in the BMW. He and accused 1 (also in the BMW) and accused 19 (in the Hyundai) had reciprocally stored each other’s numbers on their respective phones. On accused 8’s phone was stored the numbers of accused 22 (in the red Combi) and accused 26 (who was arrested later). In turn,accused 8’s number was stored on the phonebook of accused 20 (also in the BMW).

Accused 8 did not testify.

Accused 9 was in the white Combi. On his phonebook was stored the numbers of accused 22 (in the red Combi),accused 11 and 15 (who were also in the white Combi) and accused 25 (arrested later).

Accused 9’s number was stored on the phonebook of accused 16 (in the red Combi).

Accused 9 did not testify.

Accused 10 was in the white Combi. He had no cellphone on his person at the time of arrest. Accused 10 passed away during the trial.

Accused 11 was in the white Combi. He (accused 11) and accused 9 (also in the white Combi) and accused 8 (in the BMW), as well as accused 25 (arrested later) had reciprocally stored each other’s numbers in their respective phonebooks. On accused 11’s phonebook were stored the numbers of accused 7 and 22 (both in the red Combi) and accused 2, 13 and 23 (in the white Combi).

Accused 11 (in the white Combi) testified that he knew accused 2, 9, 18, 21 and 23 (in the white Combi with him),accused 22 (in the red Combi) and accused 25 (arrested later). He omitted to mention accused 7 (in the red Combi) and accused 13 (in the white Combi) whose names were stored on his phonebook, and accused 8 (in the BMW) whose number was stored on his (accused 11’s) phonebook and vice versa.

Accused 12 was in the red Combi. He had 3 cellphones on him, one of which belonged to accused 7. On his phonebooks no relevant names or numbers appear. In turn, his number does not appear in the phonebooks of any of the other accused.However, he testified that he knew accused 7 (in the red Combi with him).

Accused 13 (Kehla) was in the white Combi. We have already held, for reasons to be elaborated upon later,that he was in fact “Kehla”, whose cellphone records were placed before the Court under that name. His number was stored in the phonebooks of accused 7 (in the red Combi) and accused 9, 11 and 23 (in the white Combi).

Accused 13 (in the white Combi) in evidence maintained that he had no cellphone on him when he was arrested. Among his co-accused he knew only accused 10 (deceased),a statement belied by the fact that his number was stored on the phones of accused 7, 9, 11 and 23 as aforementioned.

Accused 14was in the Hyundai. His number was stored on the phonebooks of accused 1 (in the BMW) and 19 (also in the Hyundai)

During his testimony accused 14 (in the Hyundai) said that he knew accused 1, 8 and 20 (in the BMW),accused 19 (in the Hyundai with him) and accused 26 (arrested later).

Accused 15was in the white Combi. He and accused 9 and 21 (both in the white Combi) had reciprocally stored their numbers on their respective phonebooks. On his (accused 15’s) phonebook was saved the numbers of accused 22 (in the red Combi) andaccused 19 (in the Hyundai) and his number was on the phonebook of accused 19.

Accused 15 did not testify.

Accused 16was in the red Combi. He and accused 17 (in the white Combi) had reciprocally stored each other’s numbers on their respective phonebooks. On his (accused 16’s) phonebook was saved the number of accused 22 (also in the red Combi). In turn, his number was saved in the phonebook of accused 9 (in the white Combi).

Accused 16 (in the red Combi) testified that he knew accused 22 (in the red Combi with him) and accused 2 and 4 (in the white Combi). He omitted accused 17 (in the white Combi) whose name was stored in his phonebook and vice versa, and accused 9 (in the white Combi) who had his (accused 16’s) phone number stored in his phonebook.

Accused 17 was in the white Combi. He and accused 3 (in the white Combi) and accused 16 (in the red Combi) had reciprocally stored each other’s numbers in their respective phonebooks. On his (accused 17’s) phonebook was saved the number of accused 22 (in the red Combi). His number was saved on the phonebook of accused 9 (in the white Combi).

Accused 17 did not testify.

Accused 18 was in the white Combi. He and accused 11 and 21 (both in the white Combi) had reciprocally stored each other’s numbers on their respective phonebooks. On the phonebook of accused 18 was stored the numbers of accused 1 (in the BMW),accused 19 (in the Hyundai),accused 22 (in the red Combi) and accused 2, 9 and 23 (all in the white Combi) and also accused 25 (arrested later).

Accused 18 (in the white Combi) stated that he knew accused 2, 9, 11 and23 (in the white Combi),accused 22 (in the red Combi) and accused 25 (arrested later). He omittedaccused 21 (in the white Combi) whose number was stored on his phonebook and vice versa, and also accused 1 (in the BMW) and accused 19 (in the Hyundai) whose numbers were on his phonebook.

Accused 19 was in the Hyundai. He and accused 1 and 8 (both in the BMW) had reciprocally stored each other’s numbers on their respective phonebooks.Accused 19 had saved on his phonebook the numbers of accused 7 (in the red Combi),accused 13 and 15 (both in the white Combi) and accused 14 (also in the Hyundai), together with the numbers of accused 25 and 26 (both arrested later). The number of accused 19 was saved on the phonebooks of accused 3 and 18 (both in the white Combi).

Accused 19 (in the Hyundai) testified that he knew accused 14 (in the Hyundai with him). He omittedaccused 1 and 8 (in the BMW) who had his number stored on their phonebooks and vice versa, and accused 7 (in the red Combi),accused 13 and 15 (in the white Combi), accused 25 and 26 (arrested later) whose numbers appear on his (accused 19’s) phonebook and accused 3 and 18 (in the white Combi) who had his name on their phonebooks.

Accused 20was in the BMW. On his phonebook were saved the numbers of accused 14 (in the Hyundai) and accused 8 (also in the BMW), together with the number of accused 26 (arrested later).

Accused 20 (in the BMW) testified that he knew accused 8 (in the BMW with him)

He omittedaccused 14 (in the Hyundai) and 26 (arrested later) whose numbers were stored on his phonebook.

Accused 21 was in the white Combi. He and accused 15 and 18 (both in the whiteCombi) had reciprocally stored each other’s numbers ontheir respective phonebooks.Accused 21 had stored on his phonebook the numbers of accused 2, 9 and 11 (all in the white Combi). The number of accused 21 was stored on the phonebook of accused 23 (also in the white Combi) and accused 25 (arrested later).

Accused 21 (in the white Combi) testified that he knew accused 2, 9, 11, 15, 18 and 23 (also in the white Combi) but omitted mention of accused 25 (arrested later) on whose phonebook his (accused 21’s) number appears.

Accused 22 was in the red Combi. He had stored in his phonebook the number of accused 7 (also in the red Combi).Accused 22’s number was stored in the phonebooks of accused 1 and 8 (both in the BMW) and accused 5 and 16 (both in the red Combi) and accused 2, 9, 11, 15 and 18 (all in the white Combi),and accused 25 (arrested later).

Accused 22 (in the red Combi) stated that he knew accused 2, 9, 11, 18 and 21 (in the white Combi) and accused 5 and 16 (in the red Combi with him). He omitted accused 7 (in the red Combi) whose number appears on his (accused 22’s) phonebook and accused 1 and 8 (in the BMW) and accused 15 and 21 (in the white Combi) who had his number saved on their phonebooks.

Accused 23 was in the white Combi. He had stored on his phonebook the numbers of accused 2, 11, 13, 18 and 21 (all in the white Combi).

Accused 23 (in the white Combi) stated that he knew accused 17, 18 and 21 (in the white Combi with him) and accused 22 (in the red Combi). He omitted accused 2, 11 and 13 (in the white Combi) whose numbers appear on his phonebook.

Accused 24 was the driver of the white Combi. On his phonebook was stored the number of accused 26 (arrested later).

Accused 24 (driver of the white Combi) testified that he knew accused 1 (in the BMW) and accused 26 (arrested later).

Accused 25 was arrested later. He and accused 9 and 11 (both in the white Combi) had reciprocally stored each other’s numbers on their respective phonebooks.Accused 25 had stored on his phonebook the numbers of accused 2 and 21 (both in the white Combi),accused 8 (in the BMW) and accused 22 (in the red Combi). In turn, the number of accused 25 was stored in the phonebooks of accused 5 (in the red Combi),accused 18 (in the white Combi) and,accused 19 (in the Hyundai).

Accused 25 (arrested later) testified that he knew accused 2, 9, 17, 18 and 21 (in the white Combi) and accused 5 and 22 (in the red Combi). He omittedaccused 11 (in the white Combi) whose number appears on his phonebook and vice versa;accused 8 (in the BMW) whose number was stored on his phonebook, and accused 19 (in the Hyundai) on whose phonebook his (accused 25’s) number is saved.

Accused 26was also arrested later. He had the number of accused 7 (in the red Combi) saved on his phonebook. The number of accused 26 was saved on the phonebooks of accused 24 (driver of the white Combi),accused 19 (in the Hyundai),accused 1, 8 and 20 (all in the BMW).

Accused 26 (arrested later) testified that he knew accused 24 (in the white Combi),accused 7 (in the red Combi),accused 14 and 19 (in the Hyundai) and accused 1, 8 and 20 (in the BMW).

CONCLUSION :

As mentioned before, it seems to us that, in the ordinary course, a person would store the name and number of another person in the phonebook of his cellphone if such other person is a relative, friend or someone he might need to phone for a specific reason or purpose. Seen from that perspective, in conjunction with testimony of the accused, supra, and subject to a contrary plausible explanation, everything seems to point to an inevitable conclusion that the four vehicles in question and the accused in them were travelling on the N2 collaboratively south in concert and with full knowledge of each other. In the absence of a plausible explanation, it follows that the claim by the accused who testified, that they were travelling independently,is an outright lie.

EVIDENCE OF THE CELLPHONE RECORDS

The next phase of the Judgment is devoted to the use of their cellphones by the accused, and other accomplices in the commission of the offences, who are not arraigned before us.

The cellphone records reflecting the calls made and received by the accused to or from each other and to or from related associates, require a detailed discussion of the workings of a cellphone, the technology behind it and the mechanisms by which calls are forwarded and received and how the records of such are preserved.

Earlier in the judgment we mentioned that, save for accused 10 and 13 in the white Combi, all 24 accused were arrested with their cellphones on their persons – a number of them had two cellphones. When accused 25 and 26 were subsequently arrested they too had cellphones in their possession.

In the case of accused 10 and 13, the notes made by the police, as alluded to earlier in the Judgment, do not reflect that cellphones were obtained from either of them. However, the name “Kehla” or phonetic variations thereof appear against the same cellphone number (0766352808) in the phonebooks of accused 7, 9, 11, 19 and 23.

Although the mechanism and function of cellphones are addressed infra, suffice it at this stage to mention that in a cellphone the phone number is not allocated to the handset, but to the SIM-card in it furnished by the Service Provider, in this instance Vodacom. The cellphone record relating to the calls made to the aforementioned number and the calls made from the cellphone in which the SIM-card with that number, reveals that the cellphone was activated through cellphone towers at times and at places which are highly relevant to the issues before us.

The question is who is “Kehla”? On a conspectus of the relevant evidence,we are satisfied that it was accused 13.

Our reasons are:

1. Accused 13’s common name is Kehla. It is the name by which he is known by his family and friends.

2. Whilst accused 13 admitted in his evidence during these proceedings that he was known as Kehla, he emphatically denied that he had a cellphone with him at the time of arrest at the Mvoti Plaza tollgate. This denial flies in the face of directly contradictory evidence in the affidavit submitted by accused 13 during his application to be admitted to bail pending the outcome of this trial. There he said that he was in possession of a cellphone at the time of arrest, but that it had been taken by the Police.

3. He was arrested in the company of accused 9, 11 and 23 in whose phonebooks his number was recorded. He was arrested in the white Combi with highly incriminating evidential material in it – e.g. some R80 000-00 in cash on the floor of the vehicle, literally at his feet where he was seated in the rear, together with the automatic rifles protruding from a bag on one of the rear seats of the vehicle.

4. The reliable evidence in point emanating from Captain Mncube,is that the white combi left from accused 24’s house at Mzingazi with a full complement on board. They followed the white Combi, which proceeded, without stopping, from accused 24’s house directly to the John Ross Highway and from there on to the N2 south,from where the vehicle continued up to the point of arrest at the tollgate.

5. Accused 13 was not a fare-paying passenger in the Combi as he claimed. It defies all imagination that a vehicle in which, on the face of it, the divided proceeds of a robbery was being conveyed would pick up an outsider as a fare-paying passenger. The fact that the Police have no record of a cellphone found in possession of accused 13 is not dispositive of the question whether he had one on him at the time of his arrest. Given the extreme circumstances in which the arrests and processing of the exhibits took place, as described supra, accused 13, could have jettisoned the cellphone unnoticed or it could have been missed or mislaid by the Police.

6. Finally, the puzzle is completed by accused 13’s mendacity, when questioned about the cellphone and his affidavit evidence aforementioned and as to how he happened to be in the white Combi at the time. The matter of accused 13’s credibility is something which will be fully and appropriately addressed in due course.

CELLPHONE TELEPHONY

What follows is derived from the collective wisdom of the expert witnesses, Mrs Heyneke from Vodacom, Mrs du Plessis from MTN and Mr Prinsloo, an engineer attached to Vodacom, experienced in the setting up and maintenance of a cellphone network. The qualifications and expertise of the witnesses was not placed in dispute, as was their testimony.

In lay terms a cellular telephone (cellphone), not unlike a handheld 2-way radio/transceiver, is a handheld mobile instrument which is capable of receiving or transmitting radio signals through a cellphone network operated by service providers, such as Vodacom and MTN, the only two relevant to these proceedings.

When a cellphone is turned on it automatically logs onto the Vodacom or MTN network, depending on the SIM-card installed in the hand piece (handset). A “SIM”-card is the acronym for Subscriber Identity Module. It also carries the cellphone number assigned to the user who inserts the SIM-card into the handset. Technically the SIM-card securely stores the Service Subscriber Key (IMSI) used to identify the subscriber on a cellphone telephony device once it is turned on. The relevant network immediately authenticates the validity of the SIM-card and the handset. The former establishes that the subscriber is in credit in terms of a so-called contract with the network or has “airtime” available in terms of a prepaid purchase of such time from the Service Provider. The purpose of the authentication of the handset is to establish whether it has been “blacklisted” in the case of theft.

The authentication is made by the network’s Central Data Base or “Core Network”.

The communication between the cellphone and the core network takes place through a network of cellphone towers usually found some considerable distance apart alongside major roads in rural areas and relatively closely spaced and widely spread in urban areas – the purpose being to effect cellphone service coverage as fully as possible.

In rural areas the radio signal or beam usually has a 360 degrees spread. In other words,all round or omni-directional. In urban areas the towers are usually sectorised. In that case the radio beams are directed in a specific compass direction at a spread of 120 degrees, i.e. the signal spread is in the direction where cellphone signal coverage is required for a specific urban area. One such tower, relevant to the instance, is the Richards Bay Lighthouse tower, which according to the expert testimony, serves only Mzingazi, a suburb of Richards Bay – in the sense that cellphone calls made and received in that suburb are picked up by that tower and no other.

The signal power of towers in rural areas is generally stronger and the reach further than the towers in urban areas. The signal or beam reach of the former can be up to 32 kilometres as the crow flies. Where the caller or receiver is within the signal spread or reach of two cellphone towers, the closest will pick up and process the call.

When the cellphone is switched on and authentication takes place or a call is made, radio signals pass between the cellphone and the cellphone tower which carries the strongest signal, usually the tower closest to the location of the cellphone and the person using it. In turn, the tower transfers the signal to the central data base of the network by means of landline cables. The reverse occurs between the base and the cellphone during the authentication process. In the case of a call being made, the central data base forwards the call signal to the tower closest to the cellphone being called. Where the latter is on the move, for example in a motor vehicle on the road, the tower through which the call signal is received and transmitted to the cellphone being called, will continue to transmit the signal and the receiving cellphone will continue to receive the call until the outer limit of the towers’ range is reached.

At that point the call is immediately and without interruption “handed over” or transferred to the next closest tower further along the road. Exchange of signal between the central data base and the call transmitting cellphone and the call receiving cellphone is constant. In a sense the central data base of the network will constantly “know” the location of both the cellphone caller and the cellphone called, provided they are within signal range of a cellphone tower.

The area where one tower’s radio signal spread and reach ends and another tower’s spread and reach begins, is called the “equal power boundary”. Those boundaries may overlap, in which case any cellphone call made or received in that area will be picked up by the tower which is the closer and has the stronger signal. Where the caller or receiver is on the move, the call is handed over to the next tower, which then has the stronger signal. However the record of the call reflects the detail and location of the tower through which the call was initiated. Where the caller (and his cellphone) moves out of the signal range of a tower before the signal range of the next tower is entered, the call will end.

To re-connect with the cellphone he was in communication with when the signal ended, a new call will have to be made. The record of the reconnection will reflect the location and detail of the tower through which it is again initiated.

Generally Vodacom and MTN have their own towers. Occasionally a cellphone tower is shared between the two networks, but as each network has its own designated radio frequency range, the call data of each remains its own and cannot at all be mingled with the data of the other network. All calls made and received through the Vodacom and MTN networks, are separately recorded and stored by the core network of each. All particulars pertaining to the caller and receiver, the location of each, the time and duration (to the nearest second) of each and every cellphone call, are recorded and stored. The main objective of such a detailed and exact record is for billing purposes. Someone has to pay for the service. Ironically, herein lies the guarantee of accuracy and reliability of the cellphone records.

DATA OBTAINED FROM THE ACCUSED’S HANDSETS

The cellphone handsets confiscated from the accusedwere hand-delivered to Captain Moller from the Pretoria High-Tech Centre of the South African Police Services, who, with specialised equipment extracted from the cellphone handsets all information applicable to and stored in each. Captain Moller’s evidence with regard to his qualifications and expertise, and the suitability of the equipment he employed were not placed in issue and are accepted.

Using the relevant information and data from the individual handsets, as aforementioned, the record of the calls made from and received on each such cellphone/handset during the period 1 September 2006 to 3 October 2006, both dates inclusive, was obtained from the Service Provider with whose cellphone network the cellphone was linked. In the instance only two Service Providers are involved – Vodacom and MTN

The cellphone records of the accused were obtained and placed before the Court by appropriate court orders and subpoenae.After a period of time, the Service providers transfer the cellphone records to their “archives”, seemingly to maintain the storage capacity of their current records at a manageable level.Before the network, whether Vodacom or MTN,may disclose the relevant information stored in the archives of its central data base, a court order directing such disclosure first has to be obtained in terms of the provisions of section 19 of the Regulation of Interception of Communications and the Provision of Communication-related Information Act, 70 of 2002.In casu the requisite directives were issued by the Honourable Mr Justice Seriti, a Judge of the Transvaal Provincial Division of the High Court. Thereafter a subpoena duces tecum was obtained and served on each of the Service Providers under the provisions of section 205 of the Criminal Procedure Act. Acting under direction of those measures Mrs Heyneke, on behalf of Vodacom, and Mrs du Plessis, on behalf of MTN, made the relevant cellphone records available to counsel for the State to use in evidence.

The record of all the calls from and received on the relevant cellphones which were in the possession of the individual accused, as aforementioned, during the said period, were proved and handed in as Exhibit “Z1” (in respect of accused 1) to “Z26” (in respect of accused 26) – the numbers following the letter “Z” on the exhibits signifying the numbers allocated to the accused during the trial. That the record of the calls listed in Exhibit Z applicable to each accused, correctly reflected the nature, time, place and duration of the calls made and received, together with the cellphone number of the person called or calling, were not placed in issue and was noted as common cause between the State and the accused.

At this point it would be instructive to include as part hereof a glossary of terms and abbreviations which would assist in understanding the information contained in the exhibits in question.

VODACOM :

Col 1 : MSISDN : Mobile Subscriber Integrated Services Digital Network.

(The SIM card number 082 ...)

Col 2 : IMSI : International Mobile Subscriber Identity.

(An electronically allocated serial number of a SIM card)

Col 3 : IMEI : International Mobile Equipment Identity.

(This is the serial number of the handset)

Col 4 : CALL DATE : The date calls were received or made.

CALL TIME : The time calls were received or made.

Col 5 : MTC : Mobile Terminated Call. (Incoming call received)

MOC : Mobile Originating Call. (Outgoing call made)

CF : Call Forward. (The cell phone was not answered and the call went through to voicemail, or the phone was switched off and the call went directly to voicemail, or the phone could be diverted)

MTSMS : Short Message Service Terminating. (Incoming Message)

MOSMS : Short Message Service Originating. (Outgoing Message)

Col 6 : DURATION : The duration of received or made calls.(measured in seconds)

Col 7 : OTHER PARTY : Number of other party when making or receiving calls.

Col 8 : CELL ID : The Base station’s code reference.

Col 9 : CELL NAME : The Base station when receiving or making calls.

MTN

Col 1 : CALL DATE : The date calls were received or made.

Col 2 : CALL TIME : The time calls were received or made.

Col 3 : CALLED : Outgoing call

Col 4 : CALLING : Incoming call

Col 5 : I or O as indicated in the column labelled “Call Direction” – “I” for incoming calls and “O” for outgoing calls.

Col 6 : In the column labelled as “Service Code”“T11” should be interpreted as a successful call,“T22” means a outgoing SMS, and “T23” is indicated in the instance of an incoming SMS.

Col 7 : CALL DURATION (Measured in seconds)

Col 8 : IMEI : International Mobile Equipment Identity.

(This is the serial number of the handset)

Col 9 : CELL ID : The Base station’s code reference.

Col 10 : The column labelled as “Site Location” indicates the name of the base station whereas the column labelled as “Site Suburb” indicates the greater region of where the “Site Location” is situated.

Col 11 : The name of the base station is often derived from the area where the base station is situated.

As appears from Exhibit “Z1” to “Z26”, each exhibit reflects every call made and received by the accused on the relevant handsets from 1 September 2006 to 3 October 2006. In all some 72 126 individual callsare involved and the analyst, Mrs Botha, had to analyse them all in order to extract the calls relevant to the issues raised in these proceedings. It took months of painstaking effort to be in a position to place all the calls, said to have been made and received by the accused through their cellphones during the relevant period, before the Court.

The correctness and accuracy of the analyses made by Mrs Botha, was tested over and over again during the course of these protracted proceedings in which the cellphone records of the accused played a major, if not definitive, role. In all, thewitness spent 14 days in the witness stand. The evidence given by Mrs Botha is not based on expert opinion, but on facts in the form of calls made and received on the respective cellphones, to be searched for and extracted from the myriad of call data furnished by the Service Providers (Vodacom and MTN), in exhibits Z1 to Z26. To confirm the correctness of any call thus singled out, all one need do is to find the call where it is reflected in the relevant exhibit “Z” – readily done once the date, time (exact to a second), together with the number of the caller or called is furnished by the witness.

After she gave her evidence, Mrs Botha was requested by the Court, at the behest of counsel for the State and the accused and, for that matter, itself, to remain on and be available to the State and defence and from time to time by the Court, when the need arose to establish where a particular accused was, when he made and received calls, as indicated by the location of the towers through which the calls were routed.Accordingly Mrs Botha was throughout available to assist all counsel and the court. The assistance in that context, sought from the witness by the Court, occurred with the full knowledge and consent of counsel for both the State and the accused. Without that continued assistance, counsel, and for that matter the Court, would have had to spend endless hours going through 72 000-odd calls to extract the required information. When, as here, the case sought to be made out against the accused, is substantially based on cellphone information concerning the movements and location relative to the time and place of the occurrence of the crimes charged to the accused,the services of an analyst such as Mrs Botha is indispensable to a proper and fair hearing and the Administration of Justice. As far as I am aware this is the first case in which cellphone evidence of this magnitude has been dealt with.

THE USE OF CELLPHONES BY THE ACCUSED

As all the primary and secondary offences, save those relating to the Firearms Control Act>, were committed on or about the N2 in the vicinity of Charters and Penicuik on 2 October 2006, and as the cellphone records of a substantial number of the accused, including accused 25 and 26, who were arrested later,activated a number of cellphone towers, which serve the areas through which the N2 runs, it became important to determine what stretch of the N2 is served by a particular tower or towers.

The record shows that accused 9 and 25 called accused 22 at exactly the same time. Accused’s 25’s call was fractionally earlier and was received whilst accused 9’s call went to “voicemail”, resulting in a missed call. This type of co-incidence recurred a number of times in the cellphone records relating to this trip by the accused. It appears to convey a need on the part of the accused to make contact or stay in contact constantly – a notion supported by the sheer frequency of communication between the accused.

8. The Volksrust tower was activated by calls made when accused 22 and accused 9 communicated with each other at 00h27 and 00h35.

9. The Krieglersholm tower (between Volksrust and Ingogo) was activated by a call made by accused 9 to 22, who at that point in time was in the signal reach of the Newcastle tower (00h59) close to Ingogo.

10. The Ingogo turn-off from the R23 onto the R34 falls within the signal range of the Newcastle tower. That tower was activated by calls made when accused 9 and 23 communicated with each other at 01h07 and again at 01h11; accused 16 communicated with accused 9 (01h14) – the latter then receiving the call through the Madadeni Tower, a neighbouring tower to Newcastle tower; accused 16 communicated also with accused 22 (01h15); accused number 22 communicated with Spiwet 01h12 and also accused 23, (who was with accused 18) at 01h13.

11. The Madadeni tower (between Ingogo turn-off and Utrecht) was activated by calls made when accused 9 communicated with accused 16, who received the call through the Newcastle tower (01h14); accused 9 was in communication with accused 22 (also at 01h14)- the two calls were made within a minute; accused 21,(with accused 2 and 15) called an unknown number (01h17).

12. The Utrecht tower was activated by a call made when accused 22 communicated with Spiwet (01h36).

13. The Bembaskop tower was activated by a call when accused 22 communicated with accused 9 (01h55).

14. The Vryheid tower was activated by calls when accused 9 communicated with accused 22 (02h16); accused 25 received two sms’s (02h13 and 02h14).

15. The Jordaan Witrand tower (between Vryheid and Melmoth) was activated by a call made when accused 16 communicated with accused 22 (02h52).

16. The Melmoth tower was activated by calls made when accused 22 communicated with Spiwet (03h38) and also with accused 16, who at that time was receiving signal from the neighbouring Merino tower (03h38).

17. On this occasion also the two calls were made within a minute. As mentioned earlier the cellphone records furnish any given time up to the nearest second. Thus a comparison of the two calls in question is shown to have been made in the same minute.

18. The Mandawe Cross tower where the R34 joins the R66 coming from the opposite direction, as described earlier, accommodated a flurry of cellphone activity, which, considering the persons called and the fact that the junction provides alternative routes to Empangeni-Richards Bay, also as described earlier, gives the impression that enquiries were being made concerning what road to take, i.e. the R66 past Eshowe or the R34 through Empangeni. Whatever the reason, that tower was activated by calls made when accused 9 communicated with accused 22 (03h58 and 04h02 and 04h05 and 04h09); accused 22 communicated with Spiwet (03h58 and 04h00) and also with accused 26 (04h01); Spiwet communicated with accused 26 (03h59 and 04h00) and also with accused 24 (04h02). Accused 26 was in the Empangeni region and accused 24 at home in Mzingazi when Spiwet’s calls were received.

It seems significant that at 04h32, when Spiwet next called accused 24 the latter was at Meerensee, while Spiwet was at Empangeni. It appears that accused 24 probably arranged to meet Spiwet and guide him home, as Spiwet’s next communication was through the Richards Bay Lighthouse tower at 05h03 followed by a call made by accused 24 through the same tower at 05h07.

19. The Horseshoe Sugar Estate tower (which is in the vicinity of Jabulani) and provides radio signal to that stretch of the R34. It will be recalled that the State witness (Sithole), came across the four motor vehicles in that area, which aroused his suspicion. Sithole testified that he left his residence at Eshowe at about 03h30 and travelled to work at Fidelity’s main base at Richards Bay. He travelled on the R66 to Nkwaleni (Mandawe Cross) and at the junction turned on to the R34 towards Empangeni. Jabulani is about 40 kilometres or so removed from Eshowe. The Horseshoe Sugar Estate tower was activated by calls made when accused 22 communicated with accused 9 (04h04) and with Spiwet (04h09).

Sithole estimated that his time of contact with the suspicious vehicles occurred at about 03h45. In our view that estimate is questionable, considering the distance which he had to travel to get to Jabulani. For reasons to be elaborated upon, we find the probabilities overwhelming that the 4 vehicles which Sithole encountered were among the vehicles in which the accused that have been mentioned thus-far, were travelling in at the time. Bear in mind at this point, the history of the movements of the four vehicles in question, which has already been recounted earlier in the Judgment.

20. The Chorley Park tower is a neighbouring tower to the Horseshoe Sugar Estate tower and closer to Empangeni, was activated by calls made when accused 22 communicated with accused 16 (04h20) and also with accused 9 (04h36).

21. The Empangeni tower was activated by calls made when accused 22 communicated with accused 9 (04h41) and with accused 25 (05h06). When the latter call was made accused 22 was at Mzingazi.

22. The Fairview tower, a neighbouring tower in Empangeni, was activated by a call made when accused 22 communicated with accused 16 (04h30) who was also at Fairview tower.

23. The Umhlatuze Canal tower next to the John Ross highway on the way to Meerensee was activated when accused 22 communicated with accused 9 who had reception through the Chorley Park tower at Empangeni (04h36).

24. The Ricardia Primary tower, also providing reception to the John Ross highway, was activated by a call made when accused 22 again communicated with accused 9 (04h42) who was at Empangeni.

25. The Tuzi Gazi tower,at the Small Craft Harbour which provides signal to that section of the John Ross highway, was activated by a call made when accused 22 communicated with accused 16 (04h43),who was also at Tuzi Gazi.

26. The Richards Bay Lighthouse tower, which provides cellphone signal only to the Mzingazi suburb of Richards Bay, was activated at 04h52 by a call from accused 22 to accused 9, who was receiving through the Bayside Aluminum tower on the John Ross highway and a neighbouring tower to the Tuzi Gazi tower.

Accused 9 and apparently with him accused 25, appeared to have missed their destination at Mzingazi. They seemed to have driven on along the Dune road to Richards Bay Minerals. At 05h07 accused 22, through the Richards Bay Lighthouse tower communicated with accused 9 who was at the Richards Bay Minerals tower. Contemporaneously accused 25 received two sms’s while at Richards Bay Minerals tower at 05h07. As subsequent calls made by accused 9 and 25 were made and received by them at Mzingazi, it would appear that they finally reached their destination. During the time that accused 9 and 25 had apparently strayed past their destination at Mzingazi and turned around at Richards Bay Minerals, accused 22 attempted to call accused 25 and 9 at 05:05, 05:06 and 05:07.

WHAT FOLLOWS IS A LIST OF FIRST CALLS MADE OR RECEIVED BY THE ACCUSED ATMZINGAZI THROUGH RICHARDS BAY LIGHTHOUSE TOWER

• Accused 22 – 04h52

• Spiwet – 05h30

• Accused 2 (accompanied by accused 15 and 21) – 06h00

• Accused 16 – 06h02

• Accused 11 – 07h15

• Accused 25 (who appeared to have been in the company of accused 9 at Richards Bay Minerals – 07h18)

• Accused 13 – 07h34

• Accused 26 – 08h33

• Accused 23 (accompanied by accused 18) – 08h48

• Accused 9 – 08h57

• Accused 4 – 09h06.

The only calls made by accused 4 were at Vosloorust at 19h49 on 1 October 2006 and the next one at Mzingazi at 09h06 on 2 October 2006.

• Accused 21 (accompanied by accused 2 and 15) – 09h38

• Accused 18 (who was accompanied by accused 23) at 11h05

• Accused 15 (who was accompanied by accused 2 and 21) – 12h01.

The times listed above, should not be understood to point to the arrival time of the accused. What it does mean is that the caller was at Mzingazi at that time.

Sithole had shadowed the four suspect motor vehicles from Jabulani along the R34. As the vehicles progressed, the accused’s cellphone activities sequentially activated the towers along the way until Mzingazi was reached. Sithole saw all four vehicles enter the premises of accused number 24’s house. The timeframe, within which the cellphone calls were made and registered in relation to the various towers from the Horseshoe Sugar Estate onward up to Mzingazi, coincides broadly with the time estimates made by Sithole while he was tailing the suspect vehicles.

In the absence of a plausible explanation consistent with innocence, arising from the explanations given by the accused in evidence, which comes up for consideration later in the Judgment, the picture that distinctly emerges from a study of the movements of each of the accused from Vosloorust to Mzingazi, leads us to conclude:

1. That the accused undoubtedly travelled to Richards Bay in a group following the same route for a distance of 586 kilometres. It was a planned expedition, rather than a trip undertaken by persons travelling independently.

2. They stayed in constant contact with each other throughout the night of 1-2 October 2006, while under way.

3. The accused were travelling in five motor vehicles at least. As commented earlier,accused 9 and 25 drove past their apparent destination at Mzingaziand obviously were not among the four vehicles followed by Sithole.That inference that at least five vehicles were involved is founded upon our view of ordinary human conduct and natural logic – a person in a motor vehicle will not use a cellphone to communicate with a fellow passenger. Save for one explained incident, this observation is demonstrated by the accused who were, on their own version, travelling together in the same motor vehicle. – accused 2, 15, 25 and accused 18and 23, who did not telephone each other during the journey to Richards Bay,except when accused 18 left accused 23 to buy Kentucky Fried Chicken at Standerton – here the exception does seem to prove the rule.

4. The accused made and received cellphone calls inter se, mostly through the same towers and when not, a neighbouring tower, where one of them had obviously moved across the equal power boundary between the towers, as explained earlier. The time and location of their calls conform to the average motor vehicle travelling time over the distances involved.

5. At Standerton and Mandawe Cross the concentration of calls appears to indicate that the accused had come to a stop for a while, and that they did so together, given the times of the calls and the numbers of the callers involved. The undeniable impression one gets is that the accused had stopped at Standerton to get refreshments and at Mandawe Crossing to get road directions or togather before moving on. Hence the calls to accused 24 at Richards Bay and accused 26 at Empangeni.

On an overview of the preceding resumé and observations, subject to aplausible explanation, as mentioned before, everything appears to indicate that, on the face of it, accused 22, 9, 2 (and with him accused 15 and 21), accused 4, 11, 13, 16, 18 (and with him accused 23, 25 and Spiwet) had travelled from the Johannesburg region to Mzingazi in concert and had with them the four suspect vehicles, which Sithole encountered and followed to the house of accused 24. In addition, the number of persons observed by Sithole in the suspect motor vehicles, as aforementioned, generally conforms to the numbers of the above accused.

To be sure, in the case of accused 4 the cellphone records show only two calls made by him – the one at the beginning and the other at the end of the trip from Vosloorust to Mzingazi.

The paucity of cellphone use by accused 4 during the trip, is supplemented by the fact that he was arrested in the white Combi which was observed leaving accused 24’s house, which gives rise to the inference that his last-mentioned call made from Mzingazi made at 09h06, was, indeed made from accused 24’s house.

6. Without finding it as a fact at this stage, the abovementioned facts and observations, it seems to us, emphatically puts paid to the claims by accused 22, 11, 13 and 16 that they had travelled to Empangeni-Richards Bay on their own.It also puts paid to the collective claims by accused 2, 15,21,18 and 23, that they too had not accompanied any other accused or motor vehicle to Richards Bay.Judging from the two calls made by accused 4 at the commencement and the end of the trip and related to the calls of the other accused, it would seem that he was amongst them.

7. Accused 7, on the one hand, and accused 3,6 and 17, (together in one vehicle), on the other, travelled from the Johannesburg region somewhat later than the other accused.Both accused 7 and the group (accused 3, 6 and 17) activated the Koppieskraal tower between Volksrust and Heidelberg at 05h02.

Along the way from there members of the group activated a number of towers, indicating that they followed the same route as the other accused, who preceded them. At 08h21 accused 7 made a call through the Todden Farm tower, which is situated between Vryheid and Melmoth some 35 kilometres from Vryheid. At 08h25 (4 minutes later) accused 17 (with the group) received a call through the same tower. At 09h43 accused 7 made a call through the Horseshoe Sugar Estate tower and four minutes later at 09h42, accused 17 received a call through the same tower. At Mzingazi accused 7 made his first call through the Richards Bay Lighthouse tower at 10h27, followed by accused 17 at 10h42. Accused 3 and 6 also made calls from there subsequently. The inference seems inescapable that accused 7 and the group formed by accused 3,6 and 17, travelled together, probably in the same motor vehicle.

8. Accused 12 left the Johannesburg area even later on 2 October 2006. He first appears at Standerton when he made a call through the Holmdene tower at 12h37. Thereafter at Krieglersholm (near the Ingogo turn-off) when he made two consecutive calls at 14h02 and 14h03. Thereafter at Vryheid he made a call through that tower at 15h25.

At Melmoth he made a call through the Melmoth tower at 16h51 and again at Mandawe Cross at 17h18. Finally, at Empangeni he made three calls to unknown numbers at 17h58, 18h26 and 22h06. At 22h14 accused 7 called accused 12 at Empangeni from Mzingazi.

On the face of it it would seem that accused 12 waited at Empangeni until summoned by accused 7 to come to accused 24’s house at Mzingazi, hence the presence there of the red Combi, driven by accused 12 at the time of his arrest; being noticed by Captain Mncube when he and Govender drove by.

The outcome:

In conjunction with the comment we made at the outset concerning the trek to Richards Bay by the accused, and the apparent lack of veracity to their claims that they had, whether as a group or individually, undertaken their trips without knowledge of the other accused travelling the same way, the outcome of the analysis of their cellphone communications, supra, shows, in our view unquestionably so, that all of the accused had travelled to Richards Bay collaboratively and with full knowledge of each other’s’ intended destination. In the result, testimony of the accused explaining the reason and individuality of their journeys to Richards Bay, is open to serious doubt, and, prima facie, appears disingenuous and will be properly evaluated later.

THE ACCUSED WHO TRAVELLED FROM DURBAN

The accused involved are accused 1, 5, 8, 14, 19, 20 and 26.

Accused 1 testified that on 2 October 2006 he travelled to Richards Bay to collect money from, one Mbuyazi to whom he had sold a motor vehicle. His cellphone records confirm that he did go to Richards Bay.

Accused 8 did not testify, but accused 20’s evidence was that accused 8 was in the motor vehicle with him when he travelled to Richards Bay on the day in question – they were in his BMW. The purpose of accused No 8 was to look at a “Venture” vehicle with the view to buying it from a certain Simelane at Richards Bay. Accused 20 was to meet a certain Zulu at Petroport,a filling station near Hluhluwe, where he would be repaid a loan, which he had made to Zulu. The meeting was to take place at 18h00 on 2 October 2006 (that time happens to coincide exactly with the time the Hi-Ace entered Petroport to make the last pick-up). Petroport receives reception from the Medham tower and is situated on the N2 plus-minus 10 kilometers south of Hluhluwe and some 23 kilometers north of Charters scene of crime. The phone records of both accused 8 and 20 show the trip from Durban to Richards Bay and, on the part accused 20, he went further north and was in the vicinity of the Umfolozi High School, at 19h12 that evening.

Accused 14 and 19 testified that on that day they had travelled together in the Hyundai in which they were arrested at Mvoti Plaza later that night. The purpose of the journey on the part of accused 14 was to see the “mother of his child”, as the child was ill. Her name was Sibongile Mkhwanazi, who lived at Mtubatuba.

Accused 19, accompanied accused 14 in order to visit a friend, Mabhiza, at Meerensee, Richardsbay. The cellphone records of accused 14 and 19 confirmed that they travelled from Durban to Richards Bay and later north on the N2, to the area which received reception from the Harrison Farm and The Nyalazi Towers.

Accused 5 testified that heflew from Johannesburg to Durban to buy stock for his business from traders at the Durban station. When he got there he was not satisfied with the available goods and the prices and was directed to Asmalls, a trader at Stanger, north of Durban, close to the N2. There too accused 5 found the prices too high and decided to go to Richards Bay to look there and to visit his girlfriend. During this journey he was conveyed in a motor vehicle belonging to accused 1, who made the vehicle and driver available for accused’s 5 business purchases, as he had done in the past.

Accused 26 resided in Durban, but at the time (1 – 3 October 2006) he was in the Empangeni area where he had a taxi business at Ngwelezane.

As in the case of the accused who travelled from Johannesburg, the route taken by the accused who travelled from Durban, is evidenced by the cellphone towers that were activated by cellphone calls made and received by them along the way.

The towers, activated accordingly, are situated in Durban, close to the N2 and north along the N2 to Richards Bay and the Empangeni off-ramp (John Ross bridge) and from there along the John Ross/R34 highway into Richards Bay and Mzingazi.

The towers activated from Amanzimtoti, where accused 1 resides, south of Durban to Mzingazi at Richards Bay from the north, are the following:

SOUTH OF THE DURBAN CENTRAL BUSINESS DISTRICT (CBD)

Amanzimtoti Residential Tower- at Amanzimtoti.

Athlone Park Tower- situated between Amanzimtoti and the Durban Airport (the “old” airport).

Durban Airport Tower – at the then Durban International Airport, south of Durban.

Pendlebury Road Tower – on the N2 just to the north of the airport,but south of the Durban CBD.

North of the Durban CBD

KenvilleTower – in Durban North.

Avoca Reservoir Tower – Durban North.

Corovoca Tower – Durban North.

Glen Anil Tower – Durban North.

Glen Hills Tower – Durban North.

Ntuzuma Depot Tower – situated in the Kwa Mashu area more or less opposite Durban North and across the N2 from it.

Siyathuthuka – Kwa Mashu area.

North of Umhlanga Rocks

Shakas Kraal Tower – at Ballito.

Groutville Tower – near the Mvoti Toll Plaza.

Addington Sugar Farm Tower – between Mvoti and Stanger.

New Guelderland Tower – between Stanger and Mandini.

Mangeti Tower at Mandini.

Ngulule Tower – between Mandini and Ginginglovu.

Ginginglovu Tower – at Ginginglovu.

Blackburn Tower – situated between Ginginglovu and Mtunzini in an area called Fairbreeze.

Mtunzini Tower – at the Mtunzini Tollgate.

Waterloo Tower – between Mtunzini and Esikhawini.

Esikhawini Tower – at Esikhawini.

Mzingwenya Tower – approximately 11 kilometers before the N2 crosses the R34/John Ross Highway where the turn-off from the N2 to Richardsbayis situated.

Harbour Lights Caravan Tower – approximately 5 kilometers from the John Ross Bridge.

Kuleka Tower – approximately 2 kilometers from the John Ross Bridge.

From the John Ross Bridge to Mzingazi:

First, the layout of the roads:

The lay-out of the roads from this point on,has assumed some importance and is described. The John Ross Highway/R34 leads to the east into Richards Bay to a point close to the harbour and from there turns north past Meerensee and then through Mzingazi and on to Richards Bay Minerals (RBM). The latter part of the road is referred to as the Dune Road. From RBM the road continues on until it again reaches the N2 at Mposa a few kilometers south of Kwambonambi.

Another road of relevance is known as the M231. That road turns out of the John Ross Highway/R34 at an area known as Arboretum Extention, a suburb. From that point the M231 leads north and passes through residential areas to the Richards Bay CBD. From there it continues North between the residential areas known as Veld and Vlei and Aquadene, on one side, and the Richards Bay Industrial area on the other. The M231then passes over the N2 and carries on to Nseleni. At that bridge one can either turn south towards Durban or north towards Mkuze along the N2.

Second, the towers along the John Ross/R34 from the John Ross Bridge to Tuzi Gazi near the harbour area:

The first is Mhlatuze Canal tower

Bayside Aliminuim tower

John Ross Highway tower

Ricardia Primary School tower

Tuzi Gazi Tower – in Richards Bay in the area where the John Ross/R34 turns north towards Meerensee.

Meerensee Tower

Richards Bay Lighthouse Tower at Mzingazi.

Towers encountered on the M231 are:

Ricardia Primary School Tower

Richards Bay Central Tower in the CBD.

ABSA Bank Arboretum – Arboretum Tower in the CBD

Arboretum tower across the Richards Bay Police Station

Super Scaff – in the industrial area.

Veld and Vlei on the residential side.

Aquadene Tower – the last tower in the Richards Bay residential area towards Nseleni.

Mvubu Tower – where the M231 joins the N2.

CELLPHONE COMMUNICATIONS OF THE “DURBAN” ACCUSED EN ROUTE FROM DURBAN TO RICHARDS BAY

Before accused No 1 and 19 departed separately from Durban to Richards Bay on 2 October 2006, they communicated with each other at 01h32, both receiving signal through the Glen Anil Tower. It appears to be a strange time for a social call.

Accused 1 appears to have commenced his journey to Richards Bay at about 08h00, as his first communication en route was with accused 26 at 08h18. At that time accused 1 communicated through the Athlone Park Tower and accused 26 through the Ricardia Primary School Tower in Richards Bay. For ease of reference I shall, from this point on, refer only to the name of the tower.

At 08h20 accused 1 communicated with accused 20. Accused 1 was at Prospecton and accused 20 at Siyathuthuka, in the Kwa Mashu area.

At 08h54 at Shakas Kraal accused 1 communicated with an unknown person.

At 08h57 and at Groutville accused 1 unsuccessfully tried to communicate with “Xha” an apparent accomplice,about whom more will be said in due course.

At 09h26 and at Ngulule accused 1 communicated with accused 20, who was then at Glen Anil.

At 09h27, one minute later, accused 1 communicated with accused 5. Accused 1 was at Ngulule and accused 5 at the Johannesburg International Airport.

It is common cause that accused 5 travelled by air to Durban.

At 09h31 (4 minutes later) accused 1 communicated with accused 20. Accused 1 was at Ginginglovu and accused 20 at Glen Anil.

At 09h33 accused 1 communicated with “Xha”. Accused 1 was at Blackburn and “Xha” at Glen Anil.

At 09h35 accused 1 communicated with accused 5. Accused 1 was at Mtunzini and accused 5 at Johannesburg International Airport.

At 09h39 accused 1 communicated with accused 5. Accused 1 was at Waterloo and accused 5 still at the Johannesburg Airport.

At 09h44 accused 1 communicated with accused 26. Accused 1 was at Mzingwenya and accused 26 at Aquadene.

At 09h46accused 1 communicated with “Spiwet”, another accomplice, who had travelled to Richards Bay with the other accused from Johannesburg. Accused 1 was at Mzingwenya and “Spiwet” at Richards Bay Lighthouse Tower,Mzingazi.

At 09h47 accused 1 communicated with accused 22. Accused 1 was at Arboretum and accused 22 at Richards Bay Lighthouse.

At 09h49 accused 1 communicated with accused 26. Accused 1 was still at Arboretum and accused 26 at Aquadene.

At 09h52 accused 1 communicated with an unknown person. Accused 1 at that stage was at Harbour Lights Caravan Park.

At 10h36 accused 1 communicated with “Xha”. Accused 1 was at Richards Bay Lighthouse at Mzingazi and “Xha” at Umhlanga Rocks W/tower. (Durban North).

At 10h39 accused 1 communicated with accused 14. Accused 1 was at Richards Bay Lighthouse,Mzingaziand accused 14 at Kenville.

At 11h12 accused 14 communicated with accused 26.Accused 14, who was with accused 19, was at Groutville and accused 26 at Richards Bay Lighthouse.

At 11h30 accused 1 communicated with accused 20. Accused 1 was at Richards Bay Lighthouse and accused 20 at Glen Anil.

At 11h48 accused 19 communicated with accused 26. Accused 19 was at Mzingwenya and accused 26 at Richards Bay Lighthouse.

At 11h54 accused 19 again communicated with accused 26. Accused 19 was at Harbour Lights Caravan Park and accused 26 at Richards Bay Lighthouse.
At 12h07 accused 19 again communicated with accused 26. Accused 19 was at Bayside Aluminium and accused 26 at Meerensee.

At 12h17 accused 19 communicated with accused 26. Accused 19 was at Meerensee and accused 26 at Richards Bay Central.

At 12h33 accused 19 once more communicated with accused 26. Accused 19 was still at Meerensee and accused 26 still at Richards Bay Central.

At 12h41 accused 1 communicated with accused 20. Accused 1 was at Meerensee and accused 20 at Avoca Reservoir (north of Durban).

At 12h42 accused 1 communicated with accused 5. Accused 1 was at Meerensee and accused 5 at the Durban Airport (the “old” airport).

At 12h57 accused 14 communicated with an unknown person. Accused 14 was at Richards Bay Lighthouse.

The two calls following hereunder are significant:

At 12h59 accused 5 communicated with an unknown person. Accused 5 was at Pendlebury road which is close to the airport.

At 12h59 accused 1 communicated with accused 20. Accused 1 was at Richards Bay Lighthouse and accused 20 at Pendlebury road also.

At 13h49 accused 5 communicated with an unknown person. Accused 5 was at Ginginglovu.

At 14h01 accused 20 communicated with accused 1. Accused 20 was at Mtunzini and accused 1 at Umfolozi High School.As will appear later, certain of the accused conducted what may be described as a reconnaissance mission to the Penicuik and Charter areas.

At 14h27accused 1 communicated with accused 20. Accused 1 was at Nyalazi and accused 20 at Richards Bay Central.

At 15h00 accused 5 communicated with accused 1. Accused 5 was at the ABSA Bank Arboretumtower.

At 15h01 accused 5 received a call while at the Veld en Vlei tower, a neighbouring tower to the ABSA Bank Arboretum tower. Accused 5 had obviously moved across the equal power boundary.

At 15h14 the accomplice, Xha, received a call from accused 26 through the ABSA Bank Arboretum tower. Accused 26 was at the Umfolozi High School tower.

At 15h15 Xha received a call through the Veld and Vlei tower from accused 26, then at Umfolozi High School tower. Again it appears that both accused 5 and 8 and Xha were making and receiving calls from the vicinity of the equal power boundary between the ABSA Bank Arboretum and Veld and Vlei towers.

At 15h16 accused 8 made a call through the ABSA Bank Arboretum tower.

At 15h16 accused 5 made a call through the ABSA Bank Arboretum tower.

At 15h18 accused 8 made a call through the Veld en Vlei tower.

At 15h26 accused 5 made a call through the ABSA Bank Arboretum tower.

At 15h44 Xha received a call through the ABSA Bank Arboretum tower from accused 1, who was at Richards Bay Central. It appears; accordingly, that at that stage Xha and accused 1 were both in the Richards Bay CBD. The communication has the appearance of two people in the same area, each trying to establish where the other was.

At 15h49 accused 5 communicated with an unknown person. Accused 5 was then at Meerensee.

A careful scrutiny of the communications between the accused as reflected above show:

1. That accused 1 set out from his home at 08h00 for Richards Bay. He arrived at Mzingazi at about 10h15, as he made his first call through the Richards Bay Lighthouse Tower at 10h36 to the said “Xha”.Bearing in mind that he was on a trip to collect money owed to him by one Mbuyazi, he made the journey in very good time. However, on the way he made and received 16 cellphone calls. Ten of those were to and from certain of his co-accused and four from alleged accomplices, none of whom, on his own version, had any relevance to the purpose of his trip, which was “to collect money”.Not a single call appears to have been made to Mbuyazi, the one person who was relevant to his journey.Thus he communicated with accused 20 (three times); accused 5 (three times); accused 26 (three times); once with accused 22 (who had travelled from Johannesburg); the said “Xha” (three times) and one with “Spiwet”, both alleged accomplices.

2. Two of the three communications of accused 1 with accused 5 took place while accused 5 was at the Johannesburg International Airport and the final one after accused 5 arrived at the Durban International Airport. It is to be noted that the communication between accused 1 and 20 shows that accused 20 was in the vicinity of Glen Anil and Avoca Reservoir Towers in the Durban North region from about 09h30 until 12h51, when he communicated with accused 1.

3. At 12h42 accused 5 was in communication with accused 1. Accused 5 was at the Durban International Airport (south of Durban) and accused 1 was at Mzingazi. 18 Minutes later both accused 5 and 20 communicated through the Pendlebury Road Tower at exactly the same time, namely 12h59 – accused 5 with an unknown person and accused 20 with accused 1. The Pendlebury Road Tower is an immediate neighbouring tower to Durban International Airport Tower, being just to the north of the latter, both next to the N2a distance of 2.8 kilometres apart. The inference seems inescapable that accused 20 (and with him accused 8) had picked up accused 5 at the Durban Airport and was en route to Richards Bay on the N2. That inference is strengthened by the cellphone communications of accused 5 and 20 on the way to Richards Bay.

4. At 13h49 accused 5 communicated through the Ginginglovu Tower. At 14h01 accused 20 communicated with accused 1 through the Mtunzini Tower, a neighbouring tower to the Ginginglovu Tower– 14 kilometres apart.

5. Judging from the time and distance between the locations of accused 5’s communications by cellphone after he left Durban International Airport and arrived at Richards Bay, his evidence seems highly doubtful that he first called at the Durban Railway Station to buy stock and, when unsuccessful, went to Stanger for the same purpose, which again proved unfruitful and then travelled onto Richards Bay.

Accused 5’s call from Pendlebury Road south of the Durban CBD close to the airport was at 12h59. His first communication at Richards Bay took place at 15h00 – two hours and over 200 kilometers later. There simply was no time for the claimed excursions to the Durban Station and Stanger, before going to Richards Bay.

6. Accused 20’s communications after he reached Richards Bay, where he was to drop accused 8, show that he remained in the Richards Bay CBD in the reception range of the Richards Bay Central Tower through which he communicated with: accused 1 (at 14h27and again 1 minute later at 14h28), and as will be seen many times thereafter – and not only with accused 1.

A perusal of accused 20 and 8’s cellphone records show that they were in the Richards Bay CBD the previous day,1 October 2006and that accused 20remained at the vicinity of the Richards Bay CBD on 2 October 2006 from about 14h27 until 15h34. During that time he communicated with a number of the accused and accomplices.

7. As reflected above accused 5, 8 and Xha made calls from the same towers in the Richards Bay CBD contemporaneously. The perception gained is that accused 5, 8 and Xha remained with accused 20 in the Richards Bay CBD after they arrived there from Durban. The Richards Bay Central and the Absa Bank Arboretum towers are both located on top of the Absa building in Richards Bay CBD.

Judging from their cellphone records, accused 20 and Xha appear to have been in regular contact with each other – on 41 occasions during 1 September 2006 to 30 September 2006 and twice on 1 October 2006. The calls made and received by accused 20, 5, 8 and Xha in the CBD aforementioned, whilst in close proximity of each other. They did not phone each other – one does not phone a person you can talk to directly. The inference seems justified that they were probably together in the Richards Bay CBD when those calls were made.

8. Accused 14 communicated with accused 1 and 26 while he was on the N2 to Richards Bay in the company of accused 19 at: 10h39 with accused 1 through the Kenville Tower (Durban North);11h26 through the Groutville Tower to the area of Mvoti with accused 26.At Mzingazi accused 14 communicated with an unknown person at 12h57.

Accused 19 in the same vehicle as accused 14 communicated with accused 26 on five occasions; through the Mzingwenya Tower, plus-minus 10 kilometers from the John Ross Bridge at 11h48 (accused 26 was then at Mzingazi);through the Harbour Lights Caravan Park Tower plus-minus 5 kilometers fromthe bridge, at 11h54 (accused 26 was at Mzingazi); through the Bayside Aluminium Tower in the Richards Bay Industrial area, at 12h07 (accused 26 was then at Meerensee Tower, which is situate on the John Ross/R32 leading from Mzingazi);through Meerensee Tower at 12h17 (accused 26 was at Richards Bay Central Tower);Meerensee Tower, at 12h33 (accused 26 is still at the Richards Bay Central Tower).

9. As in the case of the Johannesburg accused, most of the accused who were from Durban, whether singly (accused 1, 5 and 26) or in pairs (accused 8 and 20; accused 14 and 19), ended up in Mzingazi.

In the case of accused 8, after his last communication at 15h00 through the ABSA Bank Arboretum tower in the Richards Bay CBD as aforementioned, his cellphone was not activated again before his arrest later that night. However he was arrested in the BMW in the company of accused 20, with whom he had travelled to Richards Bay, and accused 1, in circumstances already described. That BMW was seen by Captain Mncube leaving accused 24’s premises at Mzingazi. In the absence of a plausible explanation to be determined later, it would seem thataccused 8, 5 and possibly Xha had been in accused 20’s company through the greater part of the day.

CATALOGUE OF CELLPHONE COMMUNICATIONSBY THE ACCUSED FROM MZINGAZI (RICHARDS BAY LIGHTHOUSE TOWER)

The cellphone records of the accused reveal, save in the case of accused 8, 10 and 12,that on 2 October 2006all the remaining accused all made or received calls through the Richards Bay Lighthouse Tower, which, as made clear during the course of the judgment, is the only tower which serves Mzingazi.

What follows is a catalogue of such calls, which includes SMS’s and missed calls.

Per accused

Acc 1	42
Acc 2	25
Acc 3	7
Acc 4	2
Acc 5	2
Acc 6	15
Acc 7	46
Acc 8	0
Acc 9	26
Acc 10	0
Acc 11	19
Acc 12	0
Acc 13	27
Acc 14	18
Acc 15	26
Acc 16	30
Acc 17	9
Acc 18	14
Acc 19	7
Acc 20	22
Acc 21	25
Acc 22	60
Acc 23	39
Acc 24	9
Acc 25	20
Acc 26	60

550

Accomplices

Fana	21
Spiwet	17
Xha	0
Msimango	18
Mzet	33

89

TOTAL639

The sheer volume of the communications, which the accused engaged in, while at Mzingazi and, given the evidence already alluded to showing which of the accused were acquainted with each other before the gathering of the accused at Mzingazi on 2 October 2006, it appears to us, on the face of it, dispositive of any suggestion that those communications were individual to each of the accused and that the said calls were made or received at some other location in Richards Bay than at Mzingazi. The expert evidence as mentioned supra was unambiguous and uncontested that the only location in Richards Bay at which cellphone calls could be made or received through the Richards Bay Lighthouse Tower, was at Mzingazi. No other tower could or did provide signal to that suburb. Where exactly in Mzingazi the calls were made and received is a question which the court has to decide on the evidence, including that of the accused, taken as a whole. That will follow in due time. However, subject to a plausible explanation to the contrary, everything points to the house of accused 24.Suffice it at this stage to hold that, prima facie, the calls made and received by the accused and accomplices through the Richards Bay Lighthouse tower, emanated from the house of accused 24. This finding will be finally visited when all the evidence as a whole, is being considered.

MOVEMENTS OF THE ACCUSED AFTER THEIR ARRIVAL AT RICHARDS BAY

When the myriad cellphone communications by the accused while they were at Mzingazi, as matters stand,from the house of accused 24, Richards Bay, and at the Penicuik and Charters areas, are unravelled, two structured excursions by the accused to the areas in which the attacks on the Fidelity motor vehicles occurred later that day, are revealed. The first thereof took place in the early afternoon and the second in the late afternoon and early evening of 2 October 2006. The first excursion has the appearance of a scouting expedition. As will be seen, it displays all the hallmarks of a reconnaissance trip. The second excursion coincided with the times and places where the robbery and attempted robbery of the cash-in-transit vehicles took place.

The routes taken by the participants in both excursions are literally signposted by the towers activated by their cellphone communications, on their way there and back.

Analysed in that way, two routes emerged. The first passes in close proximity to accused 24’s house at Mzingazi, which, as noted earlier, is the northerly aspect of the John Ross/R34 (that section is known as the Dune road), as viewed from the harbour area of Richards Bay.

From Mzingazi it leads south to the harbour/Tuzi Gazi area and from there turns west towards Empangeni. In the area of Arboretum Extention, a suburb,the M231 branches off to the Richards Bay CBD and, ultimately Nseleni, which lies beyond and to the west of the N2. From the junction between the M231 and the N2, the route taken proceeds north along the N2 past Mposa; Kwambonambi; the scene of the Penicuik primary and secondary offences, 41 kilometres from the house of accused 24; Mtubatuba and Kwamsane which lay on both sides of the N2 at that point; the scene of the Charters robbery and related offences; Petroport (the last cash pick-up point by the Fidelity Hi-Ace); Hluhluwe; Mhlosinga; Baobab Lodge and filling station; Mkuze and end at the junction where the road to Jozini and Northern Zululand turns off the N2, which, from that point leads on to Pongola.

The second route, known as the Dune road, which is said to be a “shortcut” from Mzingazi to the N2 in the Mposa area,consists of a well-maintained road leading from the proximity of accused 24’s house at Mzingazi via the offices of Richards Bay Minerals (RBM tower) to the N2 in the vicinity of Mposa, just south of Kwambonambi, which is a stone’s throw from Penicuik. The latter road was not reflected on the relevant maps placed before us. As a consequenceI invited counsel for the State and the accused to acquaint themselves as to the existence and condition of the “short-cut”. Counsel duly reported back confirming the above.

The distance along that route (short-cut) was agreed at 32 kilometres from accused 24’s house to the scene of crime at Penicuik.

With regard to the reconnaissance trip and the subsequent excursion to the areas of the crime scenes at Penicuik and Charters, the cellphone calls made and received by each of the accused and accomplices, had to be extrapolated from their cellphone records, Exhibits Z1 to Z32, both inclusive. That was done and collated in copious schedules which the witness, Mrs Botha, furnished to counsel and the Court. Extensive use was made thereof in both the State and Defence cases. As will be noted in due course, the accused were, in certain instances, hard put to explain their presence in relevant areas and, in others, came up with explanations, which appeared somewhat forced, to say the least.

We include, as part of the Judgment, a record of relevant communications between the accused and the accomplices involved in the excursions, which we hereafter shall refer to as the “log of communications” or “communications log”, as the case may be.

The log represents every call, sms, missed call made or received by the accused and their accomplices from the time the scout group left Mzingazi on reconnaissance to the Penicuik and Charters areas until they returned to Richards Bay. Again from the time the participants in the second excursion left from Mzingazi and Richards Bay CBD to the vicinity of the scenes of crime at Penicuik and Charters, as well as their return to Mzingazi where all the accused and most of the accomplices were shown to have gathered afterwards.

However, before that is done and in order to contextualise the movements of the accused involved in both excursions from the house of accused 24 at Mzingazi and back, the cellphone towers, which were activated by their passage, needs to be identified with reference to the location and time of the cellphone communications between the accused and accomplices. In order to accommodate that need, the following table of towers and relevant distances seems helpful, if not necessary. The table will precede the communication log.

TABLE OF RELEVANT CELLPHONE TOWERS