IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE: BHISHO

CASE NO.: CC 35/2007

In the matter et!een: THE STATE an"

#SOBO#$U %HINGA )UNGI)E *A#ISO CA#AGU ,I#E)A #NCE(ISI TITSHA)A )U$U.O #CAPHU/ISI )I,O )U#BE )IN()E #AGI

&'t ACCUSE( 2+( ACCUSE( 3r" ACCUSE( -TH ACCUSE( 5 ACCUSE( 0th ACCUSE( 7TH ACCUSE(
TH

*U(G#ENT
(H)O(H)O A(*P: 1. The seven accused are before a Judge sitting with an Assessor. 2. They are charged as follows:

2.1 C12nt & 3 r1

er4 !5th a66ra7at5n6 85r82m'tan8e'.

it is alleged that on or about the 12 th day of July 2006, at or near Newlands Area in the agisterial

district of !dantsane, they unlawfully and intentionally assaulted Thandile !g"wanca by using force and violence to induce sub ission by the said Thandiie !g"wanca, too# and stole fro hi certain ite s, na ely, a $ -.0/ rounds of a %&' se i(auto atic firear with serial nu ber )*A +6$,2 and thirty

unition, his 0ro0erty and 1 or being in his lawful 0ossession, and did rob hi of

these ite s, aggravating circu stances being 0resent, as they wielded a firear .

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2.2 C12nt 2 3 attem9te" m2r"er: in that on or about the date and at the 0lace referred to in count one, they unlawfully and intentionally assaulted Thandisi?we *o tsora, a ale 0erson, by shooting hi with a firear , intending to #ill hi .

The charge is acco 0anied by a warning to the effect that, if they are convicted as charged, the 0rovisions of s +1-2/ of the 4ri inal =aw A end ent Act, relating to the a00licable. ini u sentences, will be

1'

105 of 1997

2.. C12nt 3 3 r1

er4 !5th a66ra7at5n6 85r82m'tan8e':

in that on or about the date and the 0lace referred to in count one, they unlawfully and intentionally assaulted Thandisi?we *o tsora by using force and violence to induce sub ission by the said Thandisi?we *o tsora, they too# and stole fro hi certain ite s, na ely a $ Norinco firear with

serial nu ber 660116. and eighteen -1@/ rounds of a 0ossession, and robbed hi of these ite s.

unition, being his 0ro0erty or in his lawful

The charge is acco 0anied by a warning to the effect that, if they are convicted, the 0rovisions of s +1-2/ of the 4ri inal =aw A end ent Act, relating to ini u sentences, will be a00licable, as aggravating circu stances were 0resent during the co ission of the robbery.

2.A C12nt - 3 r1

er4 !5th a66ra7at5n6 85r82m'tan8e':

in that on or about the date and at the 0lace referred to in count one, they unlawfully and intentionally assaulted No atha san"a 3dith Tini by using force and violence to induce sub ission by the said No atha san"a 3dith Tini, too# and stole fro her cash a ounting to two and twenty si& thousand, nine

hundred and ten rand -)226 $10,00/, her 0ro0erty or in her lawful 0ossession, thus robbing her of the a ount. 6t is alleged that aggravating circu stances were 0resent, as the accused wielded firear s.

The charge is acco 0anied by a warning to the effect that, if they are convicted, the 0rovisions of s +1-2/ of the 4ri inal =aw A end ent Act, relating to circu stances were 0resent during the co ini u sentences, will be a00licable, as aggravating

ission of the robbery.

2.+ C12nt 5 3 r1

er4 !5th a66ra7at5n6 85r82m'tan8e':

in that a or near the 0lace and on or about the date referred to in count c e, they unlawfully and intentionally assaulted Jose0h Tshigod . and by using force and violence to induce sub ission by the said ose0h Tshigoda, too# and stole fro hi a Toyota ba##ie with registration nu ber 49T 60, 34

valued at )61 @00,00 -si&ty one thoi Band and eight hundred rand/ which was his 0ro0erty or in his lawfi 0ossession, thus robbing hi of the said vehicle, it is further c eged that aggravating circu stances were 0resent, as they wiei ed firear s,

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2.6 COUNT 0 3ATTE#PTE( #UR(ER:

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2., COUNT 7 RE)ATES TO UN)A:FU) POSSESSION OF A STAR ;## PARABE))U# PISTO) SERIA) NU#BER &5-7-0<.

COUNT < RE)ATES TO UN)A:FU) POSSESSION OF SE$EN ROUN(S OF A##UNITION.

COUNT ; RE)ATES TO UN)A:FU) POSSESSION OF A SE#I3AUTO#ATIC FIREAR# NORINCO 7.02 = 25## :ITH
ITS SERIA) NU#BER ERASE(.

COUNT &0 RE)ATES TO UN)A:FU) POSSESSION OF THIRTEEN >&3? )I$E ROUN(S OF A##UNITION.

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6. !r !ag"abi who re0resents accused four and five confir ed the 0leas and indicated that his clients elected not to disclose the bases of their defences.

,. 6n res0ect of accused si& and seven !r Ja#avuia who re0resented the then, confir ed their 0leas and indicated that they elected to re ain silent.

@. 6t is co

on cause that on 12 July 2006 shortly after 0,h00 social grants were being 0aid inside a co

unity

hall at Newlands -also #nown as N&arhuni/ in the

agisterial district of !dantsane outside 3ast =ondon by

e 0loyees of All 'ay 4ash !aster. There were about si&ty beneficiaries of the grants inside the hall. $. ;ive security guards e 0loyed by Chulani *ecurity 4o 0any were on duty at the 0ay centre to secure the oney. They are Thandile !g"wanca, Thandisi?we *o tsora, Andries, *ta 0er and %lo . The hail is fenced off and has two doors ( one in front and the other one at the bac#. The latter door was o0en. Two gates lead to the 0re ises. There is one otor gate and a s all one with two toilets ne&t to it. At the bac# there are two toilets which are ade of corrugated iron.

10 *ecurity 7fficer Thandile !g"wanca was 0osted at the s all gate inside the 0re ises. 2e would chec# those 0ersons who entered the 0re ises to ascertain whether they were allowed to enter. 2e was being assisted by a local 0erson who was a co ittee e ber. 'eo0le were allowed to enter the 0re ises but when the hall was full

!g"wanca 0revented other 0eo0le fro entering the 0re ises. =ater !g"wanca allowed another grou0 of beneficiaries to enter the 0re ises. :hen the hall was full the gate was closed again,

11. !g"wanca started to allow the third grou0 of social grants reci0ients who were about five, to enter the 0re ises. As he was about to receive the card of the second one, he noticed that so e one was 0ointing a firear at hi . 2e was 0ushed inside the 0re ises by one strange an. Two other strange en harassed and insulted

hi and too# a firear

fro his 0ossession, 7ne of the

en was to his right and another to his left. A security

guard who was at the other gate snea#ed away and went round a corner. The strange en too# !g"wanca round the co er where beneficiaries ove when they are to receive oney. :hen !g"wanca and his assailants went round the corner he could no longer see the security officer who had been at the other gate.

12. As !g"wanca was being driven round the corner, one security officer e erged. The assailant who was to !g"wancaDs left side fired a shot at the security guard who was a00earing at the corner. That security guard fell to the ground. The assailants drove !g"wanca into the hall. %eneficiaries were already at the corner. !g"wanca was caused to #neel down. 7ne of the assailants ordered !g"wanca to ta#e off his bullet(0roof vest and assisted hi to do so. That assailant covered !g"wancaDs face with his -!g"wancaDs/ Eac#et and ordered hi to lie down. ;ro that ti e !g"wanca could only hear but not see what was ha00ening. 2e heard so eone say that oney ust be released. 2e later heard a achine ringing as it does when it releases oney. 2e later heard the voice of so eone who was de anding a #ey. !g"wanca heard footste0s and voices when the assailants were wal#ing out and later heard the sound of a running otor vehicle engine. 2e later heard the sound of a otor vehicle which was being driven away. :hen he 0ulled his lu ber Eac#et off his face he saw that inside the hall were only 0ay asters and hi self. 1.. !g"wanca wal#ed out of the hall and saw a van -ba##ie/ which was used by technicians. The van had a

cano0y whose door was o0en. 2e saw guys inside it, !g"wanca 0roceeded to the security officer who had been shot in the leg but was alive. That

security officer was their su0ervisor Thandisi?we *o tsora. !g"wanca too# a tele0hone fro *o tsoraDs 0oc#et and called their office and re0orted what ha00ened.

1A.

!g"wanca said that when he first saw the three strange an they were 0ointing firear s -handguns/ at

hi . 2e was carrying a %&' firear . 2e said that so e 0eo0le call it u?i. 2e did not have a good loo# at the strange an. :hen firear s were 0ointed at hi he was shoc#ed and was unable to loo# at their faces, 2e heard shots fired fro the other side of the hall when he was being driven to the corner, 2e did not re e ber the serial nu ber of his firear . !g"wanca said that the aga?ine of his firear contained twenty five -2+/ rounds of a unition and that the other unition was in the bullet 0roof vest. The firear , the

aga?ine which also contained twenty rounds of a aga?ine and the rounds of a

unition belonged to his e 0loyer Chuiani ;idelity. !g"wanca said

that the assailants hit and #ic#ed hi with booted feet on his thigh, forcing hi to lie down. 2e would be unable to identify any one of the . 1+. >nder cross(e&a ination, !g"wanca said that before his su0ervisor Thandisi?we *o tsora was shot in

the right thigh, he -*o tsora/ a00eared running holding a firear . >nder re(e&a ination, he said that they allowed beneficiaries to enter the 0re ises at 0,h.0. 16. 7n the orning of the day in "uestion at about 0@h00 !r Jose0h Tshiogoda who is e 0loyed by All 'ay

4ash !aster, was at Newlands. 2e is a syste controller and re0airs achines which release oney. 2e was on duty so that he would re0air a achine if it would not release oney. A shortwhile after Tshiogoda had entered the

hail at Newlands he heard gunshots and 0eo0le were screa ing and running for cover. 2e said that he saw four en who entered the hail holding guns. The en de anded oney fro 0ay asters. The 0ay asters o0ened dis0ensor achines which Tshiogoda had re0aired. The en too# all the oney which was contained in bo&es into their blac# bag.

1,. After ta#ing the oney the en de anded #eys to their cars, Tshiogoda gave the the #ey to his Toyota 2ilu& van because a firear was 0ointed at hi . The en too# the #ey and left the hail. Tshiogoda saw the van being driven in the direction of !dantsane, 2e said that he was standing near the oney achines when the en entered the hall. 2e said that the en were wearing as#s. 2e could not identify the . :hen the en de anded oney and #eys they s0o#e isiFhosa. Tshiogoda said that he understands a bit of isiFhosa. The registration nu ber of the 2000 odel van is 49! 60, 34. 6t is worth )61 @00,00. The vehicle was recovered in !dantsane near the )o an 4atholic 4hurch. Tshiogoda said that so e shots were fired outside the hall.

1@.

>nder cross(e&a ination, Tshiogoda re(iterated that four en entered the hall. 2e said that the assailant

who 0ointed a firear at hi was as#ed and that all the en he saw were as#ed. 2e further said that when he was ordered to hand over the #ey he was lying down.

1$.

Thandisi?we *o tsora who is e 0loyed by Chulani *ecurity 4o 0any as a security guard was the

su0ervisor of his security co 0any guards on the orning in "uestion. 2e was 0osted inside the hall where beneficiaries were being 0aid. At about 0@h.0 *o tsora heard noise of screa ing 0eo0le outside the hall. 2e beca e curious and atte 0ted to wal# out of the hall through the front door but it would not o0en. 6t a00eared to hi that the door was loc#ed fro outside. 2e decided to use the bac# door, As he was 0roceeding towards this door he saw security guards who were his colleagues, running carrying their firear s. 2e thought that the security guards were chasing so ething and was curious to #now what was ha00ening outside the hall. 2e wal#ed out of the hall and drew his firear , 2e went round a van which was 0ar#ed near the building. 20. As he was wal#ing he was shot fro behind in the left thigh. 2e heard several other shots. As a result of the gunshot he sustained a fracture and a bro#en nerve. :hile he was lying down so eone ca e to hi and re oved his handgun and handcuffs. A an ca e to hi later to chec# whether ite s such as a firear had been ta#en. 2e was ad itted in hos0ital for three days and was discharged on the fourth day.

21.

:hile *o tsora was lying on the ground so e 0eo0le ca e out of the hall, tried to start a condor otor

vehicle which was used by All 'ay !aster staff e bers. Those 0eo0le were unable to start the vehicle. Those 0eo0le returned to the hall to de and #eys for the van he was lying ne&t to. They returned and atte 0ted to start the van but were unable to start it. 7ne of the en shouted saying: GThis is also a driver. He must get up and start the bakkie himself *o tsora told the that he could not get u0 to start the van. 2e told the to insert an i obilisers in the dash

board. They were able to start the van, got into it and drove away. 2e said that he noticed that the en were 0anic#ing. 2e lay on the ground for .0 inutes before an a bulance ca e to ta#e hi . 22. *o tsora re e bered where he 0osted his four colleagues on that orning. 2e 0osted Thandiie

!g"wanca at the s all gate. =ufefe Andries was 0osted at the otor gate, *ydney %lo at the bac# door through which reci0ients of grants entered. 2utton *ta 0er was to ove around the 0ay 0oint.

2..

:hile *o tsora was lying on the ground two robbers tal#ed to hi . 7ne of the was ar ed with a 0istol,

0ointed it at hi -*o tsora/ when he was searching hi . That an said that they were not there to shoot but to ta#e oney. *o tsora said that, that an had 0olice boots on, a blue Eean and a co bat to0 used by the 0olice. 7n his head he wore a woollen hat #nown as HbotyoH and was light in co 0le&ion.

2A. Another an ca e to *o tsora while other en were inside the hall. At that stage he had been disar ed. This an s0o#e isiIulu and was 0anic#ing when they were trying to start a vehicle as#ing what was causing the delay. *o tsora said that he had a good loo# at this an. The an wore a 0arabeflu 0air of shoes. 2is 0air of trousers and his Eac#et were brown in colour. 2e was dar# in co 0le&ion and slender.

2+. *o tsoraDs firear which was ta#en is a Norinco $ rounds of a

0istol ( serial nu ber 660116. which contained eight unition. This

unition in its aga?ine. 6n another se0arate aga?ine there were eight rounds of a

aga?ine was also ta#en by the robbers. The firear belonged to Chulani *ecurity 4o 0any.

26.

*o tsora attended an identification 0arade. 2e said that, because there were any 0eo0le on the

0arade, he did not identify any 0erson.

2,. !s No atha san"a 3dith Tini is e 0loyed by All 'ay 4ash !aster. *he is the tea leader. 7n 12 July 2006 at about 0,h.0 she and others were 0aying out social grants at N&arhuni -Newlands area/. :hile they were inside the hail there was noise outside the hall. A security guard who was inside the hall went out to investigate the noise and gunshots. Another security guard who was outside the hall entered the hall being held by a certain an. Tini said that they ran and hid under a table. The an who drove the security guard into the hall went to where Tini and others were and ordered the to ta#e out oney.

2@. Tini got u0 and 0roduced a #ey and shouted to a colleague to co e with the #ey. The en who entered the hall were carrying a bag and 0roceeded to the table. Tini said that she too# out oney and 0ut it inside the bag. The en went out of the hall. 7ne of thern returned to the hall and a00roached an H6TH guy to give hi a #ey. Tini said that the en went away. 2$. According to Tini, before the co otion started there were about si&ty beneficiaries inside the hall. *he said

that she saw three en enter the hall with the security guard and that when they de anded oney fro her, their firear s were 0ointed at her. *he was wearing a red a0ron. 7ne an too# her out fro under a table, 7ne of the en was with the security guard.

.0. Tini described a oney achine as a steel bo& which has four doors, each door with a 0adloc#. 6nside a big bo& there are s all 0lastic containers where oney is #e0t. A button is 0ressed in order to ta#e out oney. The en ordered Tini to 0ress the button. .1. Tini said that 0ay asters on that day were =uvuyo and %outcher and that the en too# out containers into their bag. According to her no shots were fired inside the half *he said that she sustained no inEuries. *he did not #now how uch oney was ta#en. *he thought that the incident occurred between 0,h.0and 0,hA+. .2. 4heryldene %outcher was e 0loyed by All 'ay 4ash !aster on 12 July 2006. :hen she testified she was no longer e 0loyed by the co 0any. *he was 0art of the tea which 0aid out social grants on the day in "uestion. At about 0,hA+ they were already inside the hall and they heard shots outside the hall. There were elderly 0eo0le inside the hall. :hen shots were fired beneficiaries fell over the chairs and hid the selves. *o e lay on their sto achs on the floor.

... According to %outcher four robbers entered the hall. 7ne of the robbers 0ushed a security guard and caused hi to lie on the floor. The robbers as#ed where 0ay asters were. They found the tea leader because she wore an All 'ay a0ron and they ordered her to o0en the 0ay asters. .A. %outcher was also wearing a blue a0ron. *he was grabbed on her shoulders. A firear was 0ointed towards her head as she was ordered to o0en the %outcher too# out fro the achine without delay. The tea leader also o0ened the achine. achine. The tea leader screa ed and called one of the

achine canisters or

oney containers and 0ut the

inside a blac# bag. After the

robbers had ta#en the bag they ordered %outcher and others to lie down on their sto achs. The robbers then left.

.+. According to %outcher all the four robbers inside the hall were ar ed. 7ne carried a rifle and others carried what a00eared to be $ 0istols. *he said that the robber who was in front of her wore a balaclava hat. %ecause

the incident occurred very fast, she was unable to identify the robbers. .6. *ydney %lo is a security guard e 0loyed by Chuiani *ecurity 4o 0any. 2e was on duty at the Newiands 0ay centre on the orning of 12 July 2006. 2e 0atrolled at the bac# of the hall. :hile he was 0atroliing he heard a screa fro the front side of the hall. 2e did not #now then what was ha00ening but suddenly saw two security guards running towards his direction. As his colleagues were e&0laining to hi what was ha00ening he saw three en running towards the , These en were firing shots in their direction. As %lo was running away to ta#e

cover he fell down and his firear re ained on the ground. 2e re ained on the ground and watched the three strange en as they chased his colleagues *ta 0er and Andries.

.,. %lo saw the three en return. 7ne of the three en returned with another an he had not seen earlier. 2e heard the strange en saying that they should go as they were getting fate. %lo got u0 and saw a van being driven round the corner at high s0eed. 2e said that the three en who chased his colleagues were about twenty 0aces -indicated/ fro hi and that all the three en were ar ed with $ handguns. 2e indicated the distance

the three strange en ran behind his colleagues as about 100 etres. The other strange an he saw return with one of the three distance. en was also carrying a firear . 2e was unable to identify the strange en because of the

.@. >nder cross(e&a ination, %lo said that he did not #now how any en boarded the van and that the three en he saw were not those who entered the hall. :hen those who were chasing returned they as#ed whether all the oney had been ta#en. %lo said that one of the strange en wore a reddish hat and that he -that an/

would so eti es cover his head. 7ne wore a greyish s#i00er shirt. Another one wore a lu ber Eac#et. A tall strange an a00eared to be addressing *ta 0er and Andries in isiIulu saying H:o?a laH. >nder re(e&a ination the 4ourt %lo said that none of the security guards fired bac# at the strange en,

.$. !tobeli !dingi is a *ergeant in the *outh African 'olice *ervice and is stationed at <ulindlela in !dantsane. 7n 12 Juiy 2006 at about 0@h20 he was on duty. They received a colleagues rushed to Newlands in two ar#ed 0olice vehicles. essage as a result of which he and his

A0. *ergeant !dingi and his colleagues sto00ed a co bi otor vehicle. 7n their return to the 0olice vehicles a white van with a cano0y a00eared and shots were fired re0eatedly fro that van. !dingi and his colleagues

returned fire. The van bu 0ed one of the 0olice vans, drove off and disa00eared. !dingi said that the van was about 100 etres away fro the 0olice vans when shots were fired. According to !dingi any shots were fired fro the van. The cano0y of the van was o0en. There were 0assengers in the cabin and on the bac# of the van. !dingi did not #now how any 0assengers there were. 2e said that they tried to chase the van but they couid not see it as it had disa00eared.

A1. :here and how the accused were arrested was dealt with in the trials (within ( a trial, rulings of which for 0art of the

record.

A2. The first accused !sobo vu Jhinga toid the 4ourt that on 12 July 2006 he was not at Newlands and that he could not re e ber where he was because it has been a long ti e. 2e denied that(he co said that what the 0olice wrote in his state ent -confession/ did not co e fro itted robbery on that day. 2e hi . >nder cross(e&a ination,

Jhinga ad itted that in his bail a00lication he said that he bought a car fro ;raserDs garage for )2. 000,00 at the end of July -no year was given/. 2e denied that he bought the car with his share of the s0oils.

A.. The second accused =ungiie Ja iso denied that he co

itted robbery on 12 July 2006. 2e did not #now

where he was on this date but he would go to the 2ighway ta&i ran# where he sold his goods. 2e said that he has been in custody for a long ti e. At the identification 0arade Ja iso was not identified. 2e said that before he a00eared before the !agistrate who obtained his state ent the 0olice an who escorted hi read a docu ent to hi written in 3nglish which the 0olice an translated into isiFhosa.

AA. The third accused 4a agu Ii ela denied that he was involved in the robbery which too# 0lace at Newlands on 12 July 2006. 2e said that he could not say where he was on this date because it is a long ti e ago. 2e would go and sell his cleaning custo ers. aterials and would visit his

A+. !ncedisi Titshala, the fourth accused, was a ta&i driver 0rior to his arrest. 2e said that what is contained in the state ent he allegedly ade did not e anate fro hi . 2e said that he was not one of the en who co itted robbery at Newlands and that he did not atte 0t to #ill

Thandisi?we *o tsora. 2e could not re e ber where he was on 12 July 2006. 2e o0erated a ta&i on all days e&ce0t on *undays. 2e said that he wor#ed fro 0+h00 to 1$h00. The ta&i would be bac# at its ownerDs 0lace at 1$h00. A6. The fifth accused =uvuyo !ca0hu#isi wor#ed for %uffalo 4ity !unici0ality in 3ast =ondon at the ti e of his arrest. 2e said that he was not 0resent at Newlands on 12 July 2006, that he never atte 0ted to #ill so eone or 0eo0le there and that he did not 0ossess a firear or a unition. !ca0hu#isi said that he was told by !r

*ityoshwana where to 0oint out during the alleged 0ointing out. 2e further said that on 12 July 2006 he was at 8r TheronDs consulting roo s at the 2ighway in !dantsane and was attended to by a young edical doctor very

early in the orning at about 0@h00. 2e said that he waited there but did not re e ber the ti e when he was attended to. 2e did not go to wor# on that day. 2e would not dis0ute that a doctor saw hi after 0$h00. According to 8r 3dward 2 van )ensburgDs re0ort D ar#ed e&hibt >=T handed into 4ourt by agree ent, the doctor saw !ca0hu#isi on12 July 2006. 8r van )ensburg did not #now the e&act ti e but said that it couid have been after 0$h1+. The e&act ti e when a 0atient is seen is not recorded. According to the doctorDs re0ort !ca0hu#isi co 0lained of general body 0ains but was not found to be seriously ill. As#ed whether a 0erson who was not involved in the robbery couid a#e a 0ointing out, !ca0hu#isi said that he dis0uted it because he was not 0resent where the robbery too# 0lace. 2e said that he did not #now the 0lace -Newlands/ and that he first went there when the 0olice too# hi there.

A,. The si&th accused =i?o =u be denied that he co

itted robbery and other offences at Newlands. 2e said that

on 12 July 2006 at about 0,h00 he was at 8ora Ngin?a hos0ital in 'ort 3li?abeth. 2e had not been seen by that hos0ital before that day. =u be said that he went to the hos0ital because of headache, that his te 0erature was high and his whole body was hot. 2is te 0erature and blood 0ressure were tested. 2e however left the hos0ital before he received edication because he was hungry and his body was no longer hot. )es0onding to the "uestion Hwhy is this aiibi surfacing for the first ti e towards the end of this trialKH, =u ber said that it was because it was the first ti e he was "uestioned about it. 2e said that he infor ed the 0olice at 5rou0 @ that he was in hos0ital on 12 July 2006 and they said that he would tell the 4ourt about it. 2e said that he first infor ed his 4ounsel about the alibi when he consulted hi before he gave evidence(in(chief in the ain trial.

-After a short adEourn ent !r 'ango who re0resents =u be stated that he would not call 8r <ehbi who had been sub0oenaed fro 8ora Ngin?a hos0ital to be =u beDs witness, !r 3ras us a00lied for leave to re(o0en the *tateDs case in order to call 8r <ehbi because the defence had introduced new evidence. !r 'ango did not o00ose the a00lication and it was granted/.

A@. 8r Aydin <ehbi is a senior !edical *u0erintendent at 8ora Ngin?a hos0ital in 'ort 3li?abeth. 2is evidence is briefly as follows: 8ora Ngin?a hos0ital deals only with other and child 0atients and e ergency cases. =u be,

having born in 1$@1, is not a child. Their definition of child is a 0erson under 12 years of age. The hos0ital deals with 0atients who have been referred to the hos0ital by edical doctors or hos0itals and those who were seen by the hos0ital before. The stic#er on the folder which 0ur0orts to contain =u beDs re0ort of 12 July 2006, ar#ed De&hibit TTD was not used in 2006. A different stic#er was used at that ti e. =u ber would have been dealt with as an e ergency case had he been at the hos0ital on 12 July 2006. The casualty register for that day does not show =u beDs na e. The re0ort shows that =u be was at the hos0ital at 0,hA1 on 12 July 2006 and that he was attended to by assistant nurse N ' Ntshinga. There was no 0erson e 0loyed by the hos0ital #nown as N ' Ntshinga on 12 July 2006. A$. =indile =incoln !agi, the seventh accused, denied that he co itted robbery at Newlands on 12 July 2006. 2e said

that on that day he was doing his usual wor# at his s0a?a sho0 which he co(owns with !adoda =enno& 4ingo. 2e also trained young cric#eters fro !onday to Thursday. !agi denied that he ade the state ent in which he i 0licated hi self. 2e said that so eone would tell the 4ourt that he was busy in his s0a?a sho0 on the day in "uestion. -!r 'ango indicated that he would call !r !adoda =enno& 4ingo as !agiDs witness. 7n the following day, the 0$th 8ece ber 200$ !r 'ango closed the case of !agi without calling !adoda =enno& 4ingo/.

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+1... The second accused =ungile Ja isoDs confession is

ar#ed De&hibit 0D. Ja iso stated before the

!agistrate that the incident occurred on 11 August 2006 but the events he referred to are clearly those of 12 July 2006. +1.A. The third accused 4a agu Ii elaDs confession is ar#ed De&hibit 44-2/D +1.+. !ncedisi Titshala, the fourth accusedDs state ent is ar#ed De&hibit 55D.

+1.6. =uvuyo !ca0hu#isi -accused No. +Ds/ 0ointing out with state ents is ar#ed De&hibit JJD.

+1.,. The si&th accused =i?o =u berDs confession is ar#ed De&hibit ))D,

+1.@. The seventh accused =indiie =incoln !agiDs confession is ar#ed De&hibit **D.

+2.

*ection 20$ of the 4ri inal 'rocedure Act2 0rovides: "An accused may be convicted of any offence on the single evidence of a confession by such accused
that he committed the offence in question, if such confession is confirmed in material respect. Or, where the confession is not so confirmed, if the offence is proved by evidence, other than such confession, to have been actually committed."

+..

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+A.

The confession of the first, second, third, si&th and the seventh accused show that they cons0ired and on 0ur0ose to co it the robbery at Newlands, *o e or all of the carried firear s and they

acted with co #new about this.

++.

There is undis0uted evidence that firear s were 0ointed at 0ay asters inside the Newlands hall, that a

su of oney was robbed, that shots were fired by so e assailants at so e security guard there, that security guard Thandile !g"wanca was robbed of a firear and a unition, that security guard Thandisi?we *o tsora unition by one of the

was shot by one of the assailants in the thigh and that he was robbed of his firear and a

assailants. That Jose0h Tshiogoda was robbed of his co 0any van is also not dis0uted, nor is the fact that the van was later abandoned near the )o an 4atholic 4hurch at unit nine in !dantsane.

2 supra . S219 of the Criminal Procedure Act. See 5 v Ralu

u !e 200"#2$ SACR. %9& #SCA$

+6.

The fifth accused =uvuyo !ca0hu#isi 0ointed to 4a0tain ;rederic# Johannes Cot?e a 0lace near toilets

where a security guard was held u0 at gun0oint and his rifle was ta#en. This ha00ened after !ca0hu#isi had 0ointed out a hall. 2e further 0ointed out a 0lace where the van of All 'ay was 0ar#ed and also a 0lace where a condor otor vehicle was 0ar#ed and it would not start. 2e entioned that so e of the security guards fled and that one was shot. 2e also 0ointed out a door at the bac# of the hall where they entered. 2e said that HThey then too# a ba##ie and esca0ed with it -Toyota %a##ie/ with a cano0y ...H on their way bac# !ca0hu#isi 0ointed out a 0lace near the Cing :illia stown ( 3ast =ondon highway on the tarred road where they et two *A'* -*outh African 'olice *ervice/ otor vehicles which tried to bloc# the road, but they anaged to get away between the otor vehicles.

+,.

The first accused !sobo vu Jhinga led *u0erintendent N#osiyane to a house in !dantsane where the

robbery was 0lanned. Jhinga showed *u0erintendent N#osiyane a hall and told hi that he and five friends 0ointed firear s at four security guards at the gate. 2e said that he was the only one who was not ar ed as he was carrying a huge bag in which oney would be carried. 2e said that there were any bo&es of oney and that so e were e 0ty. 2e also 0ointed out a church #nown as 4hrist the Cing where a van was abandoned. =astly Jhinga 0ointed out a house in unit si&teen where they cut oney bo&es and then shared the oney.

+@.

The fourth accused !ncedisi Titshala ad itted that he acco 0anied so e 0eo0le to a 0lace near

Newlands on a date which he did not re e ber. 2e left the there and drove the car bac# to his house during the early orning of that day. =ater on that orning so eone called hi on his cell0hone as#ing hi to return to

where he had left the two en. The caller intended to ta#e a grinder fro the boot of the car. Titshaia returned to that 0lace where the calfer re oved the grinder fro the boot of the car after which he returned to his ho e in !dantsane with the car and arrived there at about 06h.0. At about 0@h.0 on that orning so eone called hi on his cellular 0hone as#ing hi to co e and 0ic# the u0 at unit nine near the )o an 4atholic 4hurch. 2e drove to the church where he found the two en he had earlier that orning acco 0anied to Newlands together with

"other guys walking in the street and they held a big black bag .. Titshala sto00ed the vehicle he was driving
near these 0eo0le. 2e saw that they were carrying s all suitcases. All these ite s were 0laced in the boot of the car Titshala was driving. 2e was told to drive to a house at unit 16 in !dantsane and wait for the there. None of those 0eo0le got into the car. 2e drove towards the house and sto00ed outside the house. Those 0eo0le arrived. 6te s were ta#en out of the boot. Titshala could not see what was inside the bags and suitcases. The guys entered the house after which Titshala also entered the house. The bag and suitcases were in the dining roo of that house. Titshala was told to wait in the #itchen and could hear the o0ening of the bags. :hen they finished they called hi and he received )A 000,00 fro one of the guys. They were later told to dis0erse. Titshala said that he used the oney for his needs and to settle his debts. 6t is clear fro the events that the date Titshala could not re e ber is the 12th July 2006.

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60.

The si&th and the seventh accused raised defences of alibi during their evidence(in(chief during the ain

trial. 6f they had not been to the 0ension 0ay 0oint at Newlands they would not have narrated what too# 0lace there, how they esca0ed the scene in a van which was abandoned near the )o an 4atholic 4hurch in !dantsane and how the oney was shared in a house in !dantsane.

61.

The fifth accused =uvuyo !ca0hu#isi 0ointed out so e s0ots to 4a0tain Cot?e at Newlands and on the

Cing :illia stown ( 3ast =ondon highway. 2e would not have done this had he not been there on the day of the robbery. A 1999#2'$ SAC( 5& SCA)

62.

The 4ourt finds that the first, second, third, fifth, si&th and the seventh accused are the assailants who itted robberies at Newlands, esca0ed in the white van, abandoned

fired shots, shot Thandisi?we *o tsora, co

it near the )o an 4athoiic 4hurch and shared oney in a house at unit 16 in !dantsane. They ust have foreseen the 0ossibility that the firear s they were ar ed with would be used, before, during and after the robbery to threaten, to induce sub ission, to 0rotect ite s robbed and to shoot and even #ill those who would resist or stand in their way.

6..

The fourth accused !ncedisi Titshala did not ad it that he was one of the assailants at Newlands and itted offences there. According to hi his role is as stated above. There is a

that he was one of those who co

strong sus0icion that he #new that 0ension oney would be robbed at Newlands, 6n his state ent he does not state whether or not he as#ed the two 0ersons he acco 0anied to Newlands where they were going to, why they as#ed hi to return to !dantsane with that car, why they needed a grinder which was in the boot of the car, what the blac# bag and suitcases contained and why he was given )A 000,00. 2owever it cannot be said that it has been 0roved beyond reasonable doubt that he cons0ired with others to co it the robbery or that he #now that

the bags and the suitcases which were 0ut in the boot of the car he was driving near the )o an 4atholic 4hurch at unit nine in !dantsane contained oney which had been robbed at Newlands earlier on that orning, 6t can also not be said with certainty that the )A 000,00 he received was his share fro robbed and that the oney was 0art of the oney which was robbed at Newlands. the oney which had been

6A. According to the indict ent )226 $10 was robbed. !s No atha san"a 3dith Tini, the co 0lainant on this count, did not #now how uch oney was ta#en by the robbers at Newlands on the 12 th July 2006. There is however sufficient evidence that !s Tini and her colleagues were robbed of an a ount of oney.

6+. $ER(ICT

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A E B (H)O(H)O *U(GE OF THE HIGH COURT ACTING (EPUT. *U(GE PRESI(ENT && #ARCH 200;

FOR THE STATE: #R A C ERAS#US

FOR ACCUSE( ONE@ T:O. AN( THREE:

:ITH(RA:N.

#R #B POPO AFTER #R #OOI#AN HAD

FOR ACCUSE( FOUR AN( FI$E: FOR ACCUSE( SI= AN( SE$EN:

#R $ #AG%ABI #R S $ PANGO