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IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL DIVISION, PIETERMARITZBURG

JUDGMENT

           

Not Reportable

Case no: AR 349/17

 

In the matter between:

PHUMLANI NICHOLAS KHATHIDE                                       FIRST APPELLANT

CHRISTOPHER HOLISIZWE MTHEMBU                             SECOND APPELLANT

SIBUSISO NDABA                                                                        THIRD APPELLANT

NKOSINATHI NDOVELA                                                           FOURTH APPELLANT

and

THE STATE                                                                                 RESPONDENT

 

Coram:          KOEN, GORVEN AND SEEGOBIN JJ

Heard:           12 JUNE 2020

Delivered:     1 JULY 2020

 

ORDER

 

         

On appeal from: KwaZulu-Natal Division of the High Court, Southern Circuit, sitting at Ramsgate (Pillay J with an assessor, sitting as court of first instance):

1          The appeal against conviction succeeds to the limited extent that the trial court’s conviction of accused 2, 3, 4 and 5 on count 1, and the sentence of 5 years’ imprisonment imposed in respect thereof, are set aside and substituted with a verdict that ‘Accused 2, 3, 4 and 5 are found Not Guilty on count 1’.

2          The appeal is otherwise dismissed.

3          The trial court’s conviction of accused 1 on count 1, and the sentence of 5 years’ imprisonment imposed in respect thereof, are set aside, and substituted with a finding that he is found ‘Not Guilty on count 1’.

4          The direction of the trial court regarding the concurrent running of sentences is set aside, to take account of the above, and is replaced with the following:

‘(a)      It is directed in respect of accused 3 that 5 years of the sentence imposed in respect of count 5 and the sentence in respect of count 7 shall run concurrently with the sentence in respect of count 2, resulting in an effective period of imprisonment of 20 years calculated from 15 November 2013.

(b)       It is directed in respect of accused 4 that 8 years of the sentence in respect of count 4 and the whole of the sentence in respect of count 7 shall run concurrently with the sentence imposed in respect of count 2, resulting in an effective period of imprisonment of 22 years calculated from 15 November 2013.

(c)        It is directed in respect of accused 1 that the sentences imposed in respect of counts 2, 4 and 7 shall run concurrently with that in respect of count 3 resulting in an effective period of imprisonment of 20 years calculated from 15 November 2013.’

 

 

 

JUDGMENT

 

 

Koen J (Gorven et Seegobin JJ concurring)

 

[1]          The four appellants were respectively the second, third, fourth and fifth accused before the court a quo. They were all convicted of robbery with aggravating circumstances of R608 000 in cash and a Norinco pistol with 8 live rounds from two employees of G4S services, outside the Capitec Bank ATM at Ixopo on 28 July 2011 (count 2), and the theft of a Mercedes Benz motor vehicle stolen in Durban on 26 July 2011 (count 1). In addition, the second appellant was convicted of the unlawful possession of a .22 revolver (count 5) and two .22 calibre rounds of ammunition (as part of count 7), and the third appellant of the unlawful possession of a 9 mm Glock pistol (count 4) and four 9 mm calibre rounds (as part of count 7). On 15 November 2013 sentences of imprisonment of 5 years and 15 years were imposed on all the appellants in respect of counts 1 and 2 respectively. In addition the second appellant was sentenced to 10 years’ imprisonment on count 5 and 1 year’s imprisonment on count 7, and the third appellant was sentenced to 15 years’ imprisonment on count 4 and 1 year’s imprisonment on count 7. The sentences on counts 1 and 2 were directed to run concurrently in respect of the first and fourth appellants, resulting in an effective period of imprisonment of 15 years. In respect of the second appellant, the sentences on counts 1 and 2 were directed to run concurrently and the sentences on counts 5 and 7 were directed to run with each other, and 5 years of the sentence on count 5 was directed to run concurrently with the sentences in respect of counts 1 and 2, resulting in an effective sentence of imprisonment of 20 years. In respect of the third appellant the sentences on counts 1 and 2 were directed to run concurrently and the sentences on counts 4 and 7 were directed to run concurrently, and eight years of the sentence on count 4 was directed to run concurrently with the sentences on counts 1 and 2, thus resulting in an effective sentence of 22 years’ imprisonment.

 

[2]          The appellants were granted leave to appeal against their convictions and sentences by the Supreme Court of Appeal. The second, third and fourth appellants had however not sought to appeal their sentences of imprisonment, and the first appellant has subsequently abandoned his appeal against the sentences imposed on him. This appeal accordingly proceeds in respect of the convictions only.

 

[3]          The appellants were charged together with Mr Edward Mtambo (accused 1) and a Mr Mduduzi Zondi (Mr Zondi) who was to have been accused 6. Mr Zondi however died before the commencement of the trial. We were advised from the bar by respondent’s counsel that accused 1 has not pursued any appeal.

 

[4]          In convicting the appellants, the trial court relied on the following: in the case of the first appellant, reliance was placed on a statement made to the late Captain Munro in respect of the robbery, cell phone evidence linking him to the date of the robbery and the area of the robbery, and circumstantial evidence regarding the stolen vehicle allegedly used during the robbery; in the case of the second appellant, reliance was placed on circumstantial evidence regarding the robbery and the theft of the motor vehicle charges and direct evidence of the .22 revolver and ammunition recovered from his home during his arrest; in the case of the third appellant reliance was placed on a statement made to Colonel Nala regarding the robbery, cell phone evidence regarding the time and place of the robbery, circumstantial evidence regarding a cash deposit made after the robbery, his possession of the 9 mm Glock pistol and ammunition found at the time of his arrest, and circumstantial evidence regarding a stolen motor vehicle used during the robbery; and in the case of the fourth appellant reliance was placed on circumstantial evidence regarding the time and place of the robbery, and the stolen vehicle used during the robbery.

 

[5]          The sufficiency of the evidence to sustain the convictions on the counts which the appellants were convicted of, shall be evaluated briefly below in respect of each count.

 

Count 2 – Robbery with aggravating circumstances

The statements by the first and third appellants

[6]          The appellants were critical of the trial court’s findings that the statements made by the first and third appellants were admissible, alleging that:

(a)  the entire process was run by the Organised Crime Units of the South African Police Services stationed at Port Shepstone and Cato Manor;

(b)  the statement obtained from the first appellant was recorded by Captain Munro who was attached to the organised crime unit at Port Shepstone;

(c)  it is unheard of that a ‘warning statement’ is recorded by a commissioned police officer;

(d)  photographs were taken by Captain Munro of the first appellant before recording his warning statement, where he should have had no idea what the first appellant was to say, that is, if the first appellant did not elect to remain silent;

(e)  the police officers must have known that what the first and third appellants might want to say would amount to confessions, in which event the pro forma confession forms,  and not the warning statement pro forma forms, ought to have been used;

(f)   the recording of the warning statements were engineered by the Organised Crime Units and the first and third appellants did not make the statements freely and voluntarily, having been threatened and assaulted;

(g)  Captain Munro was from the organised crime unit at Port Shepstone responsible for the arrest of some of the suspects in this matter.

 

[7]          A court cannot view a confession as irregular and inadmissible simply because it was taken by a police officer, for that reason alone.[1] As was cautioned in S v Gcam-Gcam:[2]

‘When confronted with confessions made by suspects to police officers whilst in custody — even when those officers are said to be performing their duties independently of the investigating team — courts must be especially vigilant. For such people are subject to the authority of the police, are vulnerable to the abuse of such authority and are often not able to exercise their constitutional rights before implicating themselves in crimes.’

The right conferred on a commissioned officer to record a confession cannot be denied even where the officer may happen to be attached to the unit investigating the offence to which the confession relates.[3] It has been observed that the recording of a statement before an officer of the same investigating unit, like the recording of a statement in the presence of an investigating officer, might provide ‘an environment that could provide fertile soil in which the accused could plant a seed of suspicion regarding the police behaviour in obtaining such confession’.[4] But ultimately the test to be applied, after evaluating the evidence with caution, remains to determine whether the statement was made freely and voluntarily whilst the deponent was in his sound and sober senses, and without the deponent having been unduly influenced thereto.[5]  

  

[8]          The evidence before the trial court revealed that the appellants had been apprised of their constitutional rights from the outset of the arrests. They co-operated with the investigating team. That would strongly suggest that there was no reason for the arresting police officers to influence or assault them. The statements by the first and third appellants would also not have an impact on the judicial decision, as the accused denied making the statements; the first appellant said he was told that a white police officer would bring a prepared statement and he had to sign it, which was denied by Constable Singo who was assisting Captain Munro by interpreting what the first appellant was saying;[6] the third appellant said he was just asked by Colonel Nala to sign the statement, but he denied the content of the statement. If the first and third appellants were to be believed it would mean that they were assaulted to make the statements which they say they did not make, save to affix their signatures thereto. On probability it is highly unlikely that they would have been assaulted simply to affix their signatures to prepared statements.

 

[9]          In so far as questions of fact arose in determining whether the first and third appellants were assaulted as alleged, the trial court had the benefit of observing the witnesses and their general demeanour when assessing their credibility. It found that the statements had been made freely and voluntarily. It preferred the testimony of the witnesses for the State and rejected the versions of the first and third appellants. Before us, Mr Barnard on behalf of the appellants, was constrained to accept that it was difficult to criticise the factual findings by the trial court in this regard.

 

[10]       Although not free of criticism, the officers provided reasons why the warning statement pro-forma forms, rather than confession pro-forma forms, were used. Captain Munro would also not have been precluded from taking photos of the first appellant before recording the statement. Indeed, his doing so might be a prudent precaution to rebut any subsequent allegations of an unlawful assault and the statement not having been made voluntarily. He also did not arrange for the first appellant to be taken to a district surgeon before and after the statement was taken. That is a point of criticism, but it must simply be considered carefully in assessing the evidence overall.

 

[11]       Injuries that were visible on the person of the first appellant shown on the photographs, were described as, and found to be, ‘old injuries’, not inflicted subsequent to his arrest and before the statement was recorded by Captain Munro. There is no basis to conclude that the trial court’s conclusion in that regard was wrong. There is further nothing conclusive to be inferred from the first appellant, upon his arrest, having elected to remain silent and repeating that election when initially detained at Scottburgh by Sergeant Mkhomo. Sergeant Mkhomo was clear that the injury was an old injury. The Criminal Record Centre staff would not detain a person who was injured lest they be accused subsequently of being somehow responsible for any such injuries. When the first appellant was detained it was recorded in the occurrence book that he was detained free from injuries.

 

[12]       The onus was on the State to show that the statements were made freely and voluntarily. There is no evidential basis to support a probability finding, as contended for by the appellants, that ‘something’ must have happened resulting in the first appellant wanting to make a statement whereas he had on two previous occasions elected to remain silent.

 

[13]       Similarly, in regard to the third appellant. To summarise, there was no credible evidence that the first and third appellants had been forced to make their statements. The trial court accordingly cannot be faulted for admitting their statements. It has not been shown that the court erred in that respect.[7]

 

[14]       The contents of the two statements were significant. The first appellant’s statement records that he was present at the robbery at Ixopo. He travelled as a passenger in a black Golf motor vehicle with one Smiley from Umgababa. The other members of the group of robbers were travelling in a white Mercedes Benz and a navy blue Ford Courier bakkie. They drove into Ixopo. The people in the white Mercedes Benz robbed the guards of the G4S vehicle of money boxes. The group thereafter made their escape from the town. The white Mercedes Benz was abandoned outside Ixopo, towards Richmond. They drove back to Umgababa where they divided the stolen money. He received R32 000. At the time of his arrest, some two months later, he still had R7 000 in his FNB savings bank account.

 

[15]       The third appellant’s statement records that he met up with Mr Zondi at the beginning of July 2011 and that he introduced the concept of the robbery to him. Mr Zondi organised various men to assist with the robbery. Around 20 to 22 July 2011 they conducted a reconnaissance of the area where the robbery would take place, observing in particular how the G4S security vehicle arrives at the Capitec Bank, with limited security being provided. On 27 July 2011 at about 20h00 Mr Zondi arrived at Umgababa driving a Mercedes Benz sedan. He spent the night with his girlfriend. On 28 July 2011 at about 8h30 a number of males arrived at the third appellant’s home. They departed in three vehicles: a black Golf with an ND registration driven by Smiley, a white Mercedes in which he travelled with accused 1 and others, and a third vehicle with an ND registration which was dark blue in colour. They arrived at Ixopo around 11h00. The dark blue vehicle was parked off near a plantation in the direction along which they would leave, outside Ixopo town where the Mercedes Benz would be abandoned after the robbery. (The Mercedes Benz was found abandoned near Stanton farm after the robbery).  

 

[16]       He together with two others confronted the guard who had alighted from the G4S vehicle with the money boxes. They dispossessed him of the boxes, removed his pistol, boarded the Mercedes Benz and raced away until they reached the blue van parked in the plantation, where they abandoned the Mercedes and transferred with the money canisters into the blue vehicle. They returned to Umgababa with the Golf travelling ahead of them to warn them of any police road blocks. Back at Umgababa, they regrouped and shared the money. He received R63 000. They thereafter parted ways.

 

The cell phone records

[17]       These confessions assume particular significance in respect of the first and third appellants when regard is had to the cell phone evidence. The trial court attributed cell phone number 0782592438 to accused 1, cell phone number 0784347846 to the first appellant, cell phone number 0739820351 to the second appellant, cell phone number 0782401047 to the third appellant, and the cell phone with number 0789741741 to the fourth appellant. Accused 1 did not dispute the number attributed to him. 

 

[18]       The first appellant disavowed all knowledge of the number attributed to him. Sergeant Mkhomo however testified that it was the number provided to him by the first appellant. Furthermore, it was also the number recorded in the preamble to the statement recorded by Captain Munro, and it was also the number provided by the first appellant and recorded in the diary/pocket book entry, exhibit AA. Those documents were all completed prior to any cell phone records being subpoenaed from the cell phone provider, MTN. The trial court rightly concluded that the number could therefore not have been obtained from anyone other than the first appellant himself.

 

[19]       The second appellant also disavowed knowledge of the number attributed to him, contending that it belonged to his sister. He, however, admitted using the number on the day of the robbery. His personal particulars are recorded in the records of the cell phone company as that of the customer for so-called Rica verification purposes. The trial court did not err in concluding that he was using that cell phone number on the day in question.

[20]       The third appellant was similarly reflected as the customer in respect of the cell phone number attributed to him. He did not dispute that it was the cell number which he used, but sought to explain that the calls made were in respect of various construction projects he was involved with. He disputed that he had contact with the first appellant although the records reflected a call received at 11h02.

 

[21]       The fourth appellant did not dispute his cell phone number and having travelled to Ixopo at the relevant time, but maintained that although he resides at Umgababa he travelled to Ixopo for the purpose of purchasing potatoes for his tuckshop business which sells foods, fruits and veggies at Umgababa, a considerable distance away.

 

[22]       The cell phone evidence identified the areas in which all the accused were at various stages on the day of the robbery with reference to the base stations through which calls and other forms of communication via their cell numbers were relayed. This evidence is a matter of record and will not be repeated herein. Essentially the effect of the cell phone evidence was that the perpetrators of the robbery could be categorised into two groups, namely those from the KwaMashu/Durban area and those from Umgababa.  

 

[23]       The cell phone records reveal that the appellants, accused 1 and Mr Zondi had all grouped together at Umgababa at 10h00 on the morning of the robbery. From there they moved to Ixopo, arriving there around 11h00. The cell phone evidence reveals that they were now in sector ‘A’ of the cell phone tower through which their communications were relayed. This sector covers the geographical area where the Capitec Bank, and the scene where the robbery occurred at around 12h00, is situated. The cell phone records reveal that the group later moved from Ixopo in the direction of Stanton farm, where the abandoned white Mercedes Benz vehicle was subsequently found. Thereafter they travelled back along the route to Umbumbulu and eventually ended up back at Umgababa, where communications ceased around 14h00.

 

Discussion

[24]       Accused 1 did not pursue an appeal. His statement to Captain Nyawose, in which he implicated himself, was admitted after his initial objection to its admissibility was withdrawn. The contents thereof is not evidence against his co-accused. His statement, like that of the first and third appellants, is however significant insofar as it details his movements on that day. The cell phone records relating to the number he was found to have used, were consistent with the contents of his statement.

 

[25]       The first appellant was implicated by the admissions contained in his statement. In addition, his cell phone records confirmed that he was part of this group, during their co-ordinated movement from Umgababa to Ixopo and then returning via the Richmond area, with all activity ceasing around 14h00.

 

[26]       The cell phone records of the second appellant confirmed that he was part of this same group, communicating with some of them during their co-ordinated movement to Ixopo and returning to Umgababa. He could offer no other explanation for the communications between them. He also deposited an amount of R10,000 into his Absa bank account on the very next day, 29 July 2011 and deposited R39,000 into his girlfriend’s account, without being able to proffer any reasonable explanation of the source of these substantial amounts.

 

[27]       The third appellant was likewise implicated by the cell phone records. An amount of R39,000 was paid into his account, which he said was in respect of a vehicle he had sold. Various further deposits totalling R64,180 were made on 29 July 2011 in numerous smaller denominations, at an automatic teller machine. He appears to have been the one who planned the robbery, which might justify the larger share of the spoils. He could not provide any satisfactory explanation regarding the source of such a substantial amount. He alleged that it was a cash payment he received for a vehicle he had sold, but did not provide any further credible detail to support his contentions.

 

[28]       Although he denied having communicated with the first appellant, the cell phone records revealed that he received a call from him at 11h02, for which no satisfactory explanation was provided. He was also discredited in regard to his explanation that the phone calls related to construction work. No basis has been advanced to conclude that the trial court erred in rejecting his evidence.   

 

[29]       The fourth appellant was implicated by the cell phone records. He had 15 calls from Mr Zondi on that day, and could not provide a satisfactory explanation for those calls. He too made a deposit of R10,000 into his account the day after the robbery, for which no satisfactory explanation could be given: he simply said that he could have saved it, or that it was from the turnover of his tuck shop business, yet he was not able to pay a fee of R2 800 apparently required to reinstate his CC, Ndovela Trading Enterprises CC. He did not dispute having been in Ixopo around 12h00, but maintained that he had travelled there to purchase potatoes from an Indian trader at a truck on the side of the road outside the town. His explanation was discredited. It is highly improbable that he would travel such a long distance to Ixopo to purchase potatoes when he could have purchased potatoes at a number of closer major centres, such as Amanzimtoti, or Scottburgh. Further, if he was such an established customer, he could have secured the testimony of the Indian trader, to corroborate his alibi. He however failed to do so. There was no suggestion that the potato trader’s evidence could not secured. An adverse inference must arise from the failure to call the trader. It has accordingly not been shown that the trial court erred in dismissing his explanation as not reasonably possibly true.

 

[30]       The appeal against the appellants’ convictions on count 2 accordingly falls to be dismissed.

 

Counts 4, 5 and 7

[31]       These counts relate to the .22 revolver with two rounds of .22 ammunition found in the possession of the second appellant at the time of his arrest, and the Glock pistol with four 9 mm rounds uncovered at the time of the arrest of the third appellant. Both accused denied that the weapons and ammunition were retrieved from their possession by the police at the time of their arrest. The trial court rejected their evidence and preferred that of Sergeant Mkhomo and Warrant Officers Carstens and Mthembu as to how the firearms and ammunition were discovered and uncovered. These findings were not attacked on appeal. The chain of identity from the time the firearms and ammunition were seized until they were submitted for ballistic examination, which confirmed that they were firearms capable of being fired, was not disputed. It was also not in dispute that neither of the appellants held the required licences to lawfully possess the firearms and ammunition.

  

[32]       It was submitted, albeit somewhat hesitantly, in the heads of argument, that these firearms and ammunition were discovered following upon a search without a warrant and in circumstances where their arrest was not justified, accordingly that this evidence was obtained unlawfully, and that there was no admissible evidence on which the convictions on these counts could be justified. The evidence however shows that the police had a sufficiently reasonable suspicion to arrest the second and third appellants, where after they would be entitled to search them and seize any article found in their possession ‘or under (their) control . . .’ as contemplated in section 23(1) of the Criminal Procedure Act.[8] The firearms were in their possession or under their control, as contemplated. There is accordingly no substance in this argument.

 

Count 1 – The theft of the white Mercedes Benz vehicle

[33]       The owner of the vehicle, Mr Magan testified as to how he and his family were hijacked and the Mercedes Benz motor vehicle taken from them by two men in the Durban area on 26 July 2011. He was unable to identify his assailants. There was no direct evidence implicating accused 1 or any of the appellants in the robbery or theft of the vehicle. The only evidence in the confession of the third appellant, and admissible against him only, was that the Mercedes Benz was brought by Mr Zondi and that it was used to transport some of them to the robbery, and after it was used to get away from the scene, it was abandoned. His version in regard to count 1 is therefore exculpatory.

 

[34]       The State sought to place reliance on the so-called doctrine of recent possession, but such reliance would be misplaced having regard to the dicta in inter alia S v Madonsela,[9] where it was said that: ‘In the present day and age stolen vehicles do change hands with amazing speed and disingenuousness’. The Mercedes Benz could reasonably possibly have been stolen by third persons and sold to Mr Zondi.

 

[35]       Mr Magwanyana, for the respondent, also sought to persuade us in the alternative that the conviction of theft should be sustained on the basis that theft is a continuing offence. The law in that regard was considered in Shange and Others v S.[10] The fact that it is a continuing offence does not assist the State’s case. He then argued for a conviction of the crime of receiving stolen property knowing it to be stolen, being a competent verdict to theft.[11] He was however unable to identify which of the appellants had received the vehicle knowing it to be stolen. Finally, he conceded that the appellants’ conviction on count 1 could not be sustained.

 

[36]       The evidence on this count against accused 1 was the same as it was against the appellants. Accused 1 should likewise not have been convicted on count 1. Although he has not pursued an appeal, it is only proper and in the interest of justice, that this court in the exercise of its inherent jurisdiction should set aside the conviction of accused 1 on count 1. He had been convicted on counts 1, 2, 3, 4 and 7 and was sentenced to periods of imprisonment of 5 years, 13 years, 20 years,15 years and one year respectively. The sentences on counts 1, 2, 4 and 7 were directed to run concurrently with that imposed in respect of count 3 resulting in an effective term of 20 years’ imprisonment. 

 

 

Conclusion

[37]       In the premises, the appeal succeeds only to the extent that the convictions and sentences imposed in respect of count 1 fall to be set aside. The appeal against the remainder of the charges has no prospects of success.

 

Order

[38]       The following order is granted:

1          The appeal against conviction succeeds to the limited extent that the trial court’s conviction of accused 2, 3, 4 and 5 on count 1, and the sentence of 5 years’ imprisonment imposed in respect thereof, are set aside and substituted with a verdict that ‘Accused 2, 3, 4 and 5 are found Not Guilty on count 1’.

2          The appeal is otherwise dismissed.

3          The trial court’s conviction of accused 1 on count 1, and the sentence of 5 years’ imprisonment imposed in respect thereof, are set aside, and substituted with a finding that he is found ‘Not Guilty on count 1’.

4          The direction of the trial court regarding the concurrent running of sentences is set aside, to take account of the above, and is replaced with the following:

‘(a)         It is directed in respect of accused 3 that 5 years of the sentence imposed in respect of count 5 and the sentence in respect of count 7 shall run concurrently with the sentence in respect of count 2, resulting in an effective period of imprisonment of 20 years calculated from 15 November 2013.

(b)          It is directed in respect of accused 4 that 8 years of the sentence in respect of count 4 and the whole of the sentence in respect of count 7 shall run concurrently with the sentence imposed in respect of count 2, resulting in an effective period of imprisonment of 22 years calculated from 15 November 2013.

(c)          It is directed in respect of accused 1 that the sentences imposed in respect of counts 2, 4 and 7 shall run concurrently with that in respect of count 3 resulting in an effective period of imprisonment of 20 years calculated from 15 November 2013.’

 

 

 

 

 

 

 

KOEN J

Appearances

 

For appellants:         Mr L Barnard

Instructed by:           Ncama, Zungu and Associates

                                    Suite 201b, 2^nd Floor, Doone House

                                    379 Anton Lembede Street

                                    Durban

Tel No 031 309 1021

Email: bhusula76@gmail.com

 

For respondent:       Mr Magwanyana     

Instructed by:            Director of Public Prosecutions

Pietermaritzburg.

 

 

 

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