Court name
High Court of eSwatini
Case number
135 of 2004

Rex v Zikalala and Others (135 of 2004) [2016] SZHC 56 (23 February 2016);

Law report citations
Media neutral citation
[2016] SZHC 56
Coram
Mabuza, J

                

IN THE HGH COURT OF SWAZILAND

 

 

HELD AT MBABANE                                                  CASE NO. 135/2004

 

 

In the matter between:

                                               

 

REX

 

v

 

TSOTSO ZIKALALA                                                                     1ST ACCUSED

MANDLA KHANYA                                                                      2ND ACCUSED

NKOSINATSI MCANYANA MAHLINZA                                 3RD ACCUSED

ISHMAEL MSHENGU MABUZA                                                            4TH ACCUSED

SIPHO GUMEDZE                                                                          5TH ACCUSED

NOMPUMELELO VILANE                                                          6TH ACCUSED

BHEKI SHONGWE                                                                         7TH ACCUSED

MAKHENZI NXUMALO                                                               8TH ACCUSED

 

 

                                                         

Neutral Citation          :           Rex v Tsotso Zikalala and 6 Others (135/2004) [2016]

SZHC 56 (23 FEBRUARY 2016)

Coram                         :           Q.M. MABUZA –J

Heard                          :           2005; 2006; 2007; 2008; 2009; 2010; 2011; 2012; 2013; 2014

Delivered                    :           23 FEBRUARY 2016.

 

 

SUMMARY:             Accused charged with various robberies involving use of firearms –Robberies occurred at Mankayane Filling Station; Orion Sun at Ngwenya; Texray at Matsapha; Lobamba Filling Station; Evukuzenzele, Siteki – Possessing firearms and live ammunition with a valid licence or permit – Motor vehicle theft and kidnapping.

 

 

JUDGMENT

 

MABUZA –J

 

 [1]    At the end of the Crown case and in my ruling dated 16/6/2009 (See SZHC 165,  I found that Accused 1, 2, 3 and 4 had a case  to answer in respect of the following counts:

 

Count 1:     Accused 1 and 4 in respect of the robbery at Mankayane Filling Station.

Count 2:     Accused 1 and 4 in respect of the robbery at Orion Sun, Ngwenya.

Count 3:     Accused 1 and 4 in respect of the robbery at Texray.

 

Count 4:     Accused 2 in respect of the robbery at Lobamba Filling Station.

Count 6:     Accused 1, 2 and 4 in respect of the robbery at Evukuzenzele, Siteki.

Count 10:   Accused 4 in respect of possession of a firearm without a valid licence or permit.

Count 11:   Accused 4 in respect of possession of 10 live rounds of ammunition without a valid licence or permit.

Count 12:   Accused 4 in respect of possession of a firearm without a valid licence or permit.

 

Count 13:   Accused 4 in respect of possession of 4 live rounds of ammunition without a valid licence or permit.

 

Count 15:   Accused 1, 2, 3 and 4 in respect of the theft of an Opel  Corsa FDZ 719 NW.

 

Count 16:   Accused 1 in respect of the kidnapping of Dexter Fonseka.

 

 

[2]     The defence case opened on the 25//8/2009 with Mr. Mabila stating that he was closing the case in respect of Count 15 wherein Accused 1, 2, 3 and 4 were charged with the theft of an Opel Corsa FDZ 719 NW.  Accused 4 was now represented by Mr. B.J. Simelane.

 

          re: Count 1: Mankayane Filling Station

[3]     Accused 1 (DW1) was called to the witness stand whereupon he took the oath.    He stated that prior to his arrest he operated a passenger transport business.  He denied any involvement in the robbery at Mankayane.  He denied that he told PW42 that he had participated in the Mankayane robbery.  He said that he had a conversation with PW42 to the effect that he should get him a driver for a Kombi.  He stated that he left Mbabane at 5.45 p.m. with Accused 4 and Makhenzi for PW45’s home and later left for House on Fire at 6.55 p.m. where he later returned at 7.55 p.m.  He met Sicelo Shongwe at Malkerns.  He denied having taken part in the planning of the Mankayane robbery nor later sharing the proceeds of the robbery.

 

[4]     He agreed that he was given money when he later returned to PW42’s house but did not know whether or not it was from a robbery that had been committed at Mankayane.  He stated that he had never met PW3 who had informed the Court that DW1 was one of the people who carried out the robbery at Mankayane.  He confirmed that he met Sanele Dludlu (PW41) at the home of PW42.

 

          re: Count 2: Orion Sun Ngwenya

[5]     He denied any participation in the planning and robbery at Orion Sun.  He stated that he was never taken for an identification parade but that Vika Dlamini, PW41, PW42 and Makhenzi were and were positively identified.  He even described Makhenzi as tall, slender and light in complexion a description similar to himself.  He stated that the evidence of PW41, PW42 implicating him in the Orion Sun robbery was false.

 

 

          re Count 3 and 16: Texray Matsapha

[6]     He denied being involved in the commission of the robbery at Texray on the 23/7/2004. He stated that during 2004, he had a friend who resided in South Africa.  This friend hailed from the Ivory Coast and was a drug dealer.  His friend used to sell cocaine and heroin.   Drug addicts used to frequent his friends home for drugs.  When they did not have money they would leave their cars with his friend.  His friend would then hand over these cars to him to sell.  Once he crossed to Swaziland with the cars the owners would report their stolen cars so that the insurance companies would pay up.

 

[7]     He stated that during July 2004 his friend gave him a Ford Ranger Intercooler which was white in colour.  DW1 came to Swaziland with it and was selling it for E20,000.00.  While at his flat at Mhlambanyatsi, he received a call from Ndoda Mkhwanazi who asked him if he had a stolen car that he could lend him as he had a job to carry out that required the use of a stolen car.  He told Ndoda the price that he wanted for the car but Ndoda made an offer of E50,000.00.

 

[8]     On the following day Ndoda arrived with Billy Shaw and told him that they wanted the car in order to rob Texray on a Friday as it was payday.  Because their offer was good, he agreed to sell them the car and they left and returned on a Thursday.  They were carrying a bag.  They spent the night at his flat while he spent the night with his girlfriend at Thokoza, Mbabane.  In the morning he returned to Mhlambanyatsi where he met with Ndoda and Billy.  He informed them that he did not trust them as they seemed to want to rob him of his car but they denied this. 

 

[9]     Because of his unease he decided to go with them to Matsapha so that he could keep any eye on his car.  He says that they agreed to drop him off at ka-Sipho at Matsapha and from there he could see where they were going.  He went into one of the shops at ka-Sipho where he bought airtime cards.  He says that Billy was dressed in his (DW1’s) clothes and for effect also carried his (DW1’s) diary which had an emergency passport (the one page kind) and credit cards, Truworths card and telephone numbers.

 

[10]   He says that after he purchased the airtime cards at ka-Sipho, he then walked towards Texray.  When he turned the corner and took the road facing Texray, he saw the Ford Ranger come towards him in full speed with three people inside.  He turned back concluding that the high speed indicated that they had committed the robbery and were getting away.  He says that he walked until he reached the Mahhala shopping complex where he hired a taxi which drove him to Mbabane where he boarded a kombi to Mhlambanyatsi. 

 

[11]   Before hiring the taxi he telephoned Ndoda to tell him that he would find them at Mhlambanyatsi as his house key was on the car keys.  When he got home he did not find Ndoda and Billy.  He telephoned them and they informed him that they were at the club at Mhlambanyatsi and that he should join them there.  He did so.  They told him that they had robbed Texray.  Ndoda was no longer wearing his suit which he said he had left in the flat as well as the diary.  They paid him the E50,000.00 for the Ford Ranger.

 

[12]   He returned to the house where he put the money into a small bag.   He looked for his diary but could not find it.  When he phoned Ndoda, the latter’s phone was off.  He then phoned one of his taxi drivers to come and fetch him and he spent the night at Thokoza with his girlfriend.

 

[13]   On Monday he went to the Mbabane police station in order to honour bail conditions.  He had R2,000.00 in his pocket.  While at the police station he was called by an officer from the Lukhozi Unit into their offices.  He was locked up while awaiting an officer called Jomo Mavuso.  Before that he hid his money in an old fridge that was in the passage as well as the key for the Ford Ranger.  He later stated that the Ford Ranger had two sets of keys and the one he had was a spare key.  He remained with R400.00 or R500.00.  Jomo Mavuso arrived and instructed the other officers to handcuff him while making threats at DW1.  Mavuso ordered that DW1 be searched.  The search produced the remaining money, house keys and cellphone.  They searched the fridge and found the rest of the money and key.  They left the Lukhozi office and boarded a Toyota Corolla which took them to Manzini Police Regional Headquarters to Mavuso’s office.  Mavuso told DW1 that he was charging him for the Texray robbery.  He told Mavuso that the robbery was committed by Ndoda and Billy and that he did not know their whereabouts.  He gave Mavuso Ndoda’s cell number.  He explained to Mavuso the circumstances under which he gave Ndoda and Billy his car.  He together with the police drove to Mhlambanyatsi to collect the E50,000.00 and returned to Manzini.  Later he was taken to Sigodvweni police station at Matsapha where he was detained.

 

[14]   The following day he was again taken to Manzini Police Regional Headquarters where he recorded a statement which he handed in and it was marked Exhibit DA.  Mavuso asked him if he could show the police Ndoda’s flat in Johannesburg and he replied in the affirmative.  Later he travelled with Mavuso to Johannesburg but when they got to Ndoda’s flat, there was nobody there and the neighbours confirmed that they had long left.  He heard from Mavuso that his diary was left at the Texray premises during the robbery.  They returned to Swaziland.

 

[15]   He denied that he was at PW42’s house when the Texray robbery was planned contrary to PW11’s evidence that he was present but quiet.  He stated that PW11 was lying and that it was his first time to see her when she gave her evidence.  That PW33 lied when he told the court that he drove with him when the robbery was committed at Texray and PW42 lied when he implicated him as well as PW41.  He could think of no reason why they would want to implicate him.  And that PW8 also lied when he told the Court that he (DW1) was at Texray when the robbery was committed.  He denied that he kidnapped Dexter Fonseka.

 

          re: Count 6 Evukuzenzele, Siteki.

[16]   He denied that he was ever involved in planning or taking part in the robbery at Evukuzenzele, Siteki.  He said that on the 25/9/2004 he was at home at Thembelihle.  He stated that at the end of July 2004 or 1st August 2004 he had moved from Mhlambanyatsi to Thembelihle.  He stated that around that time he made money from his transport business; by selling dagga; and selling cars that were stolen from South Africa.

 

[17]   He sold dagga to someone in the United Kingdom and would be paid through Rennies bank in South Africa which was similar to the Western Union which they used to use in the past and which had since closed down in Swaziland.  He stated Rennies bank has different currencies including Emalangeni.  Sometimes he would be asked to be paid in Emalangeni to enable him to purchase dagga in rural areas where the sellers did not want to be paid in Rands.

 

[18]   During September 2004 he sent a half tonne or 500 kilograms to the United Kingdom.  The dagga was co-owned by Accused 2 and Accused 3.  His overseas contact used to pay up front to defray expenses of obtaining the dagga.  For this cargo he was due to receive between R650,000.00 to R700,000.00.  His contact telephoned him to tell him that he could only send R500,000.00 and would pay the balance later.

 

[19]   DW1 travelled to South Africa where he obtained the money.  He asked for E350,000.00 and R150,000.00.  The money was in E20.00 and R20.00 notes; E50.00 and R50.00 notes; E100.00 and R100.00 notes; The R20.00 and E20.00 notes were packed in bundles of 2,000.00; the R50.00 and E50.00 notes were packed in bundles of 5,000.00; R100.00 and E100.00 notes in bundles of 10,000.00.  There were also notes of E200.00 and R200.00 but these were few and were packed in bundles of 20,000.00.  He returned home and hid R300,000.00 beneath the lid of the stove.  The balance of 200,000.00 (mixed currency) he gave to Accused 2 with whom he met at Eveni post office.  Accused 2 was to share this money with Accused 3.  This meeting was on the 18/9/2004.

 

[20]   On the 20/9/2004 DW1 telephoned PW42 from whom he had arranged to purchase two kombi’s to meet him at Shell Garage.  They met at about 7.45 p.m. and  DW1 inspected the kombis.  They drove to Thembelihle where DW1 paid PW42 the sum of E140,000.00.  Each kombi cost E70,000.00.  PW42 in turn gave him the keys and bluebooks for the kombis.  From then on he used to collect the daily takings from the two kombis.  That meant that his source of income had increased.

 

[21]   On the 25/9/2004 he says that at about 9.00 a.m. he telephoned the drivers of the newly acquired kombis to meet him at Bandag as he wished to fit new tyres to the kombis.  Indeed they met as arranged and he paid for the tyres with his Rennies card.  From Bandag he went to Cashbuild where he purchased 20 bags of cement for a building that he was constructing at Hawane.  He paid with his Rennies card.  Thereafter he went to fetch his girlfriend from work.  She was knocking off work at 12:00 p.m. that day.  She needed the car as she had to go to Simunye.

 

[22]   He went with her as far as Manzini where he got off and she proceeded with her journey.  He telephoned Accused 2 and they arranged to meet at Steers, Manzini.  When they met, they went to Shoreca in order to buy cling wrap plastic for their dagga business.  Later they met Accused 3 at the Manzini post office.  He was coming from Siphofaneni and was with PW42 in a white Corolla driven by PW42.  Accused 2 asked PW42 to lift them and to drop them off at Matsapha where they met Albert Mngomezulu a cousin to Accused 2.  Accused 1 and 2 got into Mngomezulu’s car and drove to Mbabane and on to Thembelihle where Accused 1, 2 and 3 alighted.  Mngomezulu left.  Later DW1 telephoned his taxi driver who fetched Accused 2 and 3 and drove them to town.

 

[23]   On Monday 27/9/2004 DW1 went to honour his bail conditions at the police station and a police officer by the name of Elvis Shabangu asked for his help in apprehending suspects who had robbed Evukuzenzele, Siteki.  He agreed.  He had earlier made plans to go to Johannesburg and after speaking with the police he left with Accused 2 and 3.  They returned from Johannesburg and Accused 2 and 3 spent the night at Thembelihle.

 

[24]   On the morning of 29/9/2004, the police struck and arrested DW1, Accused 2 and 3.  The police searched the house and came up empty handed.  They were taken to the Mbabane police station.  From Mbabane the police drove with DW1 to Malkerns where he was asked what he knew about the robbery at Siteki.  He replied that he did not know anything about it.  The police threatened to torture him but he continued to plead his innocence.

 

[25]   Ultimately the police made good their word and subjected him to torture.  They cuffed him face up onto a bench and tied him on to the bench with a rope.  They tied two plastic bags over his head and face and placed a cut red tyre tube over his face which they pressed down so that he could not breathe.  At one time he pretended to be dead but the police threw cold water at him to revive him and began all over again.  Realizing that his plan to play dead was not working he started talking.

 

[26]   He told the police about the money in his house and that he had sold dagga for it.  The police drove with him to his house and retrieved the money from its hiding place in the stove.  Together with money they had taken from the bedroom it totaled E144,000.00.  They returned to Malkerns with him where he spent the night.  In the morning he was taken out of the cells and shown a charge sheet against him.  Throughout all the encounters with the police he says that he was never cautioned in terms of the judges’ rules with regard to self-incrimination or the pointing out of the money at Thembelihle.  His rights were never explained to him.

 

[27]   Later the police took him to an identification parade at Matsapha where PW7, PW29 and PW19 Bonus Mahlalela identified him.  Thereafter he was returned to Malkerns.

 

[28]   On the 1/10/2004 he was ordered to board a police kombi.  In it he found Accused 2, 3 and 4.  They were driven to the Magistrates Court at Siteki for a remand.

 

[29]   He was cross-examined by Mrs. Dlamini.  He stated that he owned 4 kombis during 2004 but had sold them after he was arrested.  When asked what other assets he had, he said that he used to rent the flat at Mhlambanyatsi as well as the house at Thembelihle.  However, the furniture valued at E70,000.00 belonged to him.  He stated that he used money from the sale of dagga and stolen cars to purchase the kombis and money from the transport business to purchase his house furniture.

 

[30]   He stated that when Makhenzi  returned to pick them up from House on Fire he instructed Accused 4 to put his hand behind the seat to take out a bag of money.  Accused 4 did so.  Makhenzi told Accused 4 that he had returned from working and that the money in the bag was a result of his being at work.  He stated that when they reached PW42’s home, Makhenzi gave them some money.  He got E2,000.00.  He stated that Makhenzi revealed that he had robbed Desmond of this money.  The matter was postponed and resumed on the 8/7/2013.  In between the hearings Accused 1, 2, 3 and 4 were released on bail on the 3/9/2009.

 

[31]   When the matter reconvened on the 8/7/2013, Mr. Fakudze for the Crown applied for a separation of trial because Accused 2 and 3 were not in attendance and could not be found.  Mr. B.J. Simelane had withdrawn his services in respect of Accused 4 who was now representing himself. 

 

[32]   Mr. Fakudze replaced Mrs. Dlamini and continued with the cross-examination of DW1.  He was asked to tell the Court about his involvement in the robbery of Texray that took place on the 23/7/2004.  He stated that he had been given a Ford Ranger by his Ivory Coast friend in South Africa to sell for E25,000.00.  After he had brought it to Swaziland Ndoda Mkhwanazi wanted to buy the car and asked how much he was selling it for and he said E25,000.00.  Ndoda wanted to use it to pull off a job at Matsapha and made an offer to purchase the car for E50,000.00.  After thinking about the matter for a few days he agreed to sell it to Ndoda.

 

[33]   Ndoda wanted to do the job on a Friday and DW1 invited him to his flat at Mhlambanyatsi.  Ndoda arrived on the Thursday in the company of Billy Shaw.  The deal was concluded and DW1 went to Thokoza in Mbabane where he spent the night.  Ndoda and Billy spent the night at DW1’s flat.

 

[34]   Because he feared that the duo would knock him he says that he decided to drive in the motor vehicle with Ndoda and Billy.  When he got to the flat he found that Billy Shaw had dressed up smartly for the job and Ndoda borrowed a suit from DW1 and dressed in it.  He too looked smart and for effect took DW1’s diary.  The diary has DW1’s emergency travel document and pictures.  They drove to Matsapha and Billy Shaw was driving.  When they got to Matsapha, DW1 alighted near ka-Sipho and the duo proceeded to Texray.  Ndoda and Billy had earlier informed him that they were going to Texray.

 

[35]   He alighted off at ka-Sipho in order to keep any eye on them as the gate to Texray was visible from ka-Sipho and this way he would make sure that they did not drive off with his car.  He stated that from where he was standing he could see the car drive through the gate at Texray.  He went into ka-Sipho and bought airtime.  After that he walked towards the Texray gate but met up with the car at the corner.  The car sped past him.  There were now three people in the car.

 

[36]   He turned back and hired a taxi which was parked at Sipho’s.  He went to Mbabane and there from where he boarded a kombi to Mhlambanyatsi where they had agreed to meet because they had his house keys.  When he arrived at Mhlambanyatsi they handed over the E50,000.00 for the car.  Ndoda did not leave the diary.  He spent the night which was a Friday at Thokoza.  On the following Monday he met a friend at a restaurant in town who gave him E2,000.00.  This money was payment for dagga sold on his behalf in South Africa by his friend.  Thereafter he went to the Mbabane police station to abide his bail conditions from a previous matter unconnected to the present matter.

 

[37]   Upon his arrival at the police station a police officer from Lukhozi placed him in one of the cells in the passage.  He hid the money in an old stove he found in the passage.  After about 15 minutes some police officers who were in the company of Jomo Mavuso handcuffed him and drove him to Manzini Regional Headquarters.  Before leaving the Mbabane police station, Mavuso had instructed the other police officers to search the area and they found the E2,000.00.

 

[38]   At Manzini he was questioned about this matter and he told the police all that he knew after that they travelled with the police to his flat at Mhlambanyatsi where he handed over the E50,000.00.  The following day he travelled with Mavuso to Johannesburg in order to point out Ndoda’s flat.  When they got there they found that Ndoda had moved house.

 

[39]   They returned to Manzini Police Headquarters where he recorded a statement, thereafter he was taken home.  Mavuso had explained to him that an armed robbery had taken place at Texray on the 23/7/2004.  That was on the same day that he had been left at ka-Sipho by Billy Shaw and Ndoda Mkhwanazi.

 

[40]   DW1 agreed that he was aware that he borrowed Ndoda and Billy the Ford Ranger who were going to commit a robbery but did not report it to the police.  That he was aware that the E50,000.00 he received from them was taken at gun point from Texray.  And that the diary that was found at Texray belonged to him.  He denied that he took part in the planning of the robbery at Texray and stated that PW42 who testified that DW1 had taken part in the planning was not telling the truth.  He stated that he knew PW42 from Mbabane when he DW1 was 14 years old and that PW42 operated a kombi transport business like him.

 

[41]   He was asked to narrate his involvement in the Siteki robbery.  He stated that what he knew of it was when the police came to Thembelihle where they arrested him together with Accused 2 and 3 and taken to the Mbabane police cells.  Thereafter he was taken to Malkerns police station where he was questioned about the robbery at Siteki.  When he said that he did not know anything about it they tortured him as earlier stated in his evidence in chief namely that he was cuffed to a bench and tubed twice while the police asked him where the money from Siteki was.   Ultimately he told the police that the only money that he had was in his house from the sale of dagga.

 

[42]   The police went with him to his house from where they retrieved the money hidden in a stove.  It was E144,000.00.

 

[43]   With regard to the Mankayane Filling Station robbery, he denied taking part in it but he agreed that he was given a share of the proceeds.

 

[44]   It was put to him that PW41 and PW42 had testified that DW1 was involved in he robbery at Orion Sun and that he was said to have carried a big long gun.  He denied this.

 

[45]   The second witness for the defence was Accused 4 (DW2).  He was represented by Mr. B.J. Simelane and Mr. Fakudze appeared for the Crown.  He testified that he was unmarried and had 4 children who were still minors.  That before he was admitted to bail he spent 5 years 3 months in custody.  Before he was arrested he used to make a living by buying cars in South Africa and re-sell them in Swaziland or Maputo.  He stated that he carried on this business for 8 years before he was arrested.  On average he made a gross profit of E60,000.00

 

[46]   In respect of Count 1 that involved robbery of the Filling Station at Mankayane he denied being involved.  He stated that at 8.00 p.m. when PW3 stated that the robbery had taken place he was in Mbabane dropping off Accused 1.  He testified on the 15/7/2004 he arrived in Mbabane driving a Nissan 1 tonner where he met up with Makhenzi Nxumalo.  The latter borrowed the motor vehicle in order to drive to Mankayane alternatively for DW2 to drive him to Mankayane.  DW2 agreed to borrow Makhenzi the car and along the way Makhenzi would drop him off at House on Fire at Malkerns where he had a meeting with Sicelo Shongwe over a motor vehicle that Shongwe wished to sell.

 

[47]   They drove together to Shell Garage in order to fill up petrol.  By co-incidence they met up with Accused 1 (DW1) at Shell Garage.  DW1 asked them where they were going and they told him.  He asked when they would be back and DW2 replied that they would be back before 8.00 p.m.  DW1 asked to go along with them provided they returned before 8.00 p.m. as he had to cash up money from his kombi transport business.  His destination was eSitsheni where he wanted to see Peter Nkambule (PW42) in order to discuss issues relating to transport business as PW42 also operated a kombi transport business.

 

[48]   DW2 testified that contrary to evidence that had been led (PW 41 Dludlu and PW42).  He did not own a 1400 Nissan at the end of July 2004 but a Nissan 1 tonner.

 

[49]   Upon arrival at eSitsheni DW1 alighted from the car and met and conversed with PW42.  DW2 denied that on the 15/7/2004 that he, DW1, PW42 and Makhenzi had a meeting during which they discussed the execution of a robbery at Mankayane Filling Station.  DW2 denied that the idea of the robbery at Mankayane had come with him and that he had already spoken to somebody employed there to assist.  He denied that at the meeting it was decided that he DW1 and Makhenzi would carry out the robbery at Mankayane.  He further denied that he, Makhenzi, DW1 and PW41 shared the spoils from the robbery.

 

[50]   He testified that on that night Makhenzi returned with money from Mankayane and he shared this money with them after picking him up from House on Fire.  He said that Makhenzi had gone to Mankayane to a man called Desmond.  He stated that he received E2,000.00 and did not know how much the others received.  E700.00 was set aside for the accomplice at Mankayane.  He denied having seen a cellphone that Makhenzi had brought back from the robbery or even making a comment to the effect that it may have belonged to the accomplice.  After sharing the money at eSitsheni they returned to Mbabane.

 

[51]   They dropped off DW1 at Shell Garage and proceeded to drop off Makhenzi at old Mobeni, Mbabane.  Thereafter DW2 drove to Ngwenya Village to visit his girlfriend, Thandi Masuku where he spent the night.  Before sleeping he used Thandi’s phone to call PW2, Mbuyiseni Nkambule and requested a meeting with him at 9.00 a.m. the following day at Malkerns.  He wanted to send PW2 to a Mr. Dlamini at Fairview to deliver money owed to Mr. Dlamini by DW2.  Mr. Dlamini is a cousin to PW2.

 

 

 

          re: Count 2: Orion Sun, Ngwenya

[52]   He says that PW2 was telling the truth that he (DW2) telephoned him at 8.00 a.m. the following morning.  He says that on the 16/7/2004 he left Mbabane at 8.00 a.m. for Malkerns after phoning one another.  He drove to Malkerns where he waited one hour for PW2.  When PW2 arrived he gave him E700.00 to take to Mr. Dlamini who is a traditional healer whom he owed for services rendered.  He says that he parted from PW2 at about 11.00 a.m.  He says that he could not therefore be at Orion Sun at Ngwenya to commit a robbery as PW41 and PW42 had testified.  They testified that DW2 had left eSitsheni at 8.00 a.m. to enable them to go and rob Orion Sun at Ngwenya.  He denied that he was at a meeting which Vika Dlamini had attended where the robbery at Orion Sun was planned and where it was decided that Vika should remain behind as his dreadlock hair style would give them away.

 

[53]   He further denied that each of them were assigned different functions and that his was to drive the getaway car.  He wondered how he could be at Malkerns and at Ngwenya at the sametime.  It was put to him that the evidence showed that DW1 was armed with an Uzi rifle, PW41 a 9mm pistol and PW42 a 9mm pistol, he responded that he did not witness this as he was in Malkerns.  He denied that when the group arrived at Ngwenya a woman came to talk to him and Makhenzi

 

[54]   He was told that the evidence shows that after the robbery at Orion Sun, the group returned to eSitsheni where they shared the money.  He denied this and stated that after he left Malkerns on the 16/7/2004 he returned to Mbabane and went to the car wash at Checkers and after that was generally busy in and around Mbabane.  He was adamant that when the robbery took place at Orion Sun at 11.00 a.m. he was at Malkerns and that he parted with PW2 at 11.00 a.m.

 

          re: Count 3: Texray Matsapha

[55]   The robbery at Texray took place on the 23rd July 2004.  He denies taking part in it.  He says that on the afternoon of the 22nd July 2004 he received a telephone call from Mandla Dlamini who was at Big Bend.  He identified Mandla as the one Mfozi Khumalo had purchased a vehicle from at his home at ka-Langa in the Lubombo District.  He says that on the 23rd July 2004, he drove from Mbabane to Big Bend.  Mandla had requested him to drive to Big Bend on the afternoon of the 23rd July 2004.  Along the way at Lobamba his motor vehicle a polo sedan broke down.  The reason for going to Big Bend was because Mandla wanted DW2 to arrange a safe passage to Swaziland for a motor vehicle, a Ford Courier that had been stolen for Mandla in South Africa. 

 

[56]   The Ford Courier was in Piet Retief and was to pass through Mahamba border gate.  DW2 had a connection with a police officer at Mahamba border gate whom he paid to allow these stolen cars to pass through the border.  He says that he had arranged to see Thobile Mabuza, his biological sister and Mkhisile Mabuza (PW11) who both worked at Texray on his way to Big Bend.  But then his car broke down and he phoned PW11 at 2.00 p.m. and told her that his car had broken down but that he was still on his way to see her.  He says that while waiting for his mechanic, PW11 phoned to say that a robbery had taken place at Texray.  He says that when the mechanic arrived he left him with the car, boarded a bus and went to Mandla at Big Bend where he arrived after 5.00 p.m.  He spend the night at Big Bend.

 

[57]   Before going to sleep he phoned PW11 and Thobile and they informed him that they did not have any money after the robbery at Texray and they asked him for help moneywise.  He told them to meet him at Nhlangano the following day on the 24th July 2004.  He was going to sort out the Ford Courier’s safe passage through Mahamba border gate.

 

[58]   In the morning of the 24th July 2004 he and Mandla travelled to Mahamba in Mandla’s car.  At about 9.00 a.m. he received a call that informed him that the Ford Courier would definitely cross the border gate.  Mandla had given him E5000.00 for Mbuli. 

 

[59]   He found the car parked at the Filling station in Mahamba.  It was white in colour and had to be filled up with petrol.  He paid the E5,000.00 and drove the car to Nhlangano with Mandla following him.  At Nhlangano he picked up PW11 and Thobile and they proceeded to Our Lady of Sorrows School in Hluthi.  The Ford Courier had South African number plates.

 

[60]   It was put to him that PW11 had implicated him in the Texray robbery.  She gave evidence that during June 2004 he had invited her to Ngwenya to meet his girlfriend.  While there he sought information about the pay package for workers at Texray.  She told him that there were 2000 workers who earned E400.00 each.  He did some calculations and became satisfied that there was money to be stolen at Texray.  He agreed that he took her to Ngwenya in order to meet his girlfriend at the end of May 2004 and not June 2004.  He denied that he sourced information about money to be stolen at Texray.

 

[61]   It was put to him that PW11 had further testified that on the following day DW2 drove her to work in a Nissan 1400.  He agreed but said that she had described the car as a Datsun 1400.  He was reminded that she had further testified that when they got to Texray he asked her questions about her employment and the set up of the building at Texray.  That he wanted her to show him where the money was counted.  That after a few days he phoned her and said he would bring money for her and Thobile and indeed he brought them E200.00 each.  He agreed that he brought the women the money but denied that he asked PW11 about the set up inside Texray.

 

[62]   It was put to him that PW11 had testified that on some other day he took her to the home of PW42 where he introduced her to a man who could not talk English nor Siswati.  He agreed.  He was told that at that meeting he was asked if the preparations were complete.  He agreed but said the preparations were not specific.  When told that PW11 had testified that she was promised E20,000.00 by PW42 if the Texray robbery was successful.  He denied this saying that she did not talk about the robbery of Texray and he did not hear any conversation about E20,000.00.  He denied that he had telephoned PW11 on the 23rd July 2004 asking whether the money had arrived at Texray.

 

[63]   It was put to him that PW11 had testified that when he met her and Thobile at Nhlangano he was driving a white Ford and that he told her that the Ford was used to commit the robbery at Texray.  He denied that such a conversation had taken place between him and PW11.  He stated that the car which was used to commit the robbery at Texray was a Ford Ranger and not a Ford Courier.  The latter was the one shown to the Court on the Court premises.  It was put to him that PW11 testified that the motor vehicle they used in Nhlangano had blue paint left on it which was the same colour as the gate paint at Texray.  He denied that she had said this.

 

[64]   Asked if he had given her E10,000.00 as a reward for having assisted him in the robbery at Texray, he denied this and said that he had given her and Thobile E500.00 each just to assist them after the robbery at Texray.  He was told that PW11 had testified that on the 4/9/2004 he met her and asked for E1,000.00.   And that he was driving a Corsa sedan.  He responded that he did see her at the beginning of September 2004 and he was driving a brown Corsa sedan but he did not ask her for any money.  He denied that he was the master mind of the Texray robbery.

 

[65]   He further denied that he had to get rid of the evidence by selling the Ford Courier to Mtofi Khumalo and stated that the Ford that was sold to Khumalo was not the one that was used in the Texray robbery.  The one sold to Khumalo (PW12) and to  (PW13) was the Ford Courier sold by Mandla and DW2 was the agent.

 

[66]   From Hluthi he drove the Ford Courier to Mandla at Big Bend.  Mandla took it to have the chassis number removed and they arranged that DW2 would drive it to Mandla’s parental house at ka-Langa.  On the morning of 26th July 2004 while driving the Ford Courier it overturned near the sugar mill at Big Bend.  The police were called to the scene.  DW2 left Mandla to attend to the police and travelled to Mbabane.  After a week Mandla telephoned him and asked him to find a buyer for the Ford Courier and that if buyers wished to view it, it was parked at his parental home at Ka-Langa. 

 

[67]   PW12 was interested in purchasing it so he could use it for spare parts.  DW2 took him and PW13 to view the car.  After viewing the car, PW12 made an offer of E7,000.00; deposit E4,000.00 and the balance to be paid later.  Mandla accepted the offer.  After DW2 was arrested on the 4/9/2004, the police questioned him about a Ford and he told them that he knew about a Ford Courier which was with PW13 and PW14.  That is the Ford Courier that was parked outside the Court and handed into Court as an exhibit.

 

[68]   He testified that at the end of July 2004 he met with PW42 who told him that he was planning to commit an armed robbery at Texray.  He denied that the robbery at Texray was planned by PW42 and himself.

 

[69]   He related to the Court that PW11 and himsel had planned to steal the money from Texray through the use of magic at which he was adept, because the use of magic did not involve the use of violence or physical presence on the premises. 

 

          re: Count 6 Evukuzenzele, Siteki

[70]   DW2 testified that during the last week of August 2004 he had gone to Johannesburg to purchase a car which cost E65,000.00 (a Hyundai).  While there he met PW42 and because he was short of E15,000.00 in respect of the motor vehicle he asked PW42 for a loan.  PW42 obliged and lent him E15,000.00.  They then agreed that they would share the proceeds of the car once it had been sold.  Upon arrival in Swaziland he decided not to share the proceeds of the car or return the E15,000.00 that PW42 had lent him.  He says that deception cost him his friendship with PW42 and they stopped speaking to one another and their relationship became sour.  He stated that with their relationship having turned sour it was impossible for him and PW42 to have met to plan the robbery of Evukuzenzele on the 25/9/2004 because they were no longer on speaking terms.

 

[71]   He stated that around 20/9/2004, he took the Hyundai to Lomahasha where he sold it to a Portuguese man for E150,000.00.  The amount was paid in Rands and Emalangeni currency.  The money was neatly packed into a checked plastic bag.  The money was not secured with rubber bands.  He telephoned Mandla Dlamini of Big Bend to fetch him from Lonhlupheko.  Mandla did so and drove him to his girlfriend (PW32) at Our Lady of Sorrows School at Hluthi.  Upon arrival at the house of PW32, he found that she was not at home and he hid the plastic bag containing the money in the ceiling for safe keeping

 

[72]   Before hiding the money he took a sum of E34,000.00 and placed it in his pocket.  Mandla then drove him to Nhlangano where he dropped off and remained.   At 8.00p.m. He telephoned David Mamba to pick him up from Nhlangano and to take him to PW17 at Zombodze Emuva.  PW17 is DW2’s traditional healer.  Upon arrival at the home of PW17, he consulted with PW17 who thereafter gave him some chest medicine.  He says that contrary to evidence led in chief, he was not carrying any bag.  After receiving the medicine he bade PW17 farewell as he was due to leave early in the morning.  He slept in the guesthouse at the home of PW17.  He woke up at about 5:00a.m. and went to board public transport to Nhlangano and from there to Mbabane.  He denied that he had left a maroon bag in the guest house where he had slept nor did he notice any maroon bag there.

 

[73]   He testified that on the 21/9/2004 he left for Johannesburg in order to buy a silver grey Toyota Camry.  He remained in Johannesburg until the 26/9/2004 when he returned to Swaziland through the Oshoek border gate.  He stated that these events are captured in his travel document copies of which he handed into Court as an exhibit (Exhibit Defence B).  He stated that he did not have any other travel document or passport.  He further stated that as he was in South Africa on the 25/9/2004 when the robbery at Siteki had taken place he could not have taken part in its commission contrary to the evidence of PW42 who testified that the robbery was planned with DW2 and after the robbery DW2 was present when the money was shared.

 

[74]   DW2 testified that he returned to Swaziland with the Toyota Camry on the 26/9/2004 and spent that night at Ngwenya Village.  Before he slept he telephoned the buyer of the Camry to meet him at Simunye with the amount of E45,000.00 being the purchase price of the Toyota Camry.  He also telephoned his nephew Sifiso Mnisi of Fairview to accompany him to Nisela where he was to meet a Samuel Maphanga.  The latter would bring a Pajero 2.8 Intercooler.  DW2 was requested to come with a buyer for the Pajero.  It was arranged that DW2 would book for them at Nisela and Maphanga would come along with one of the car dealers called Sihle.  On the 27/9/2004 he and Sifiso travelled to Nisela.  Sifiso and DW2 arrived at Nisela at about 11:00a.m. Sifiso was carrying a red Pullman (a bag on wheels that one pulls)

 

[75]   He reserved three rooms at E100.00 each for three people namely Sifiso Mnisi, Samuel Maphanga and Sihle.  The rooms were all reserved under Maphanga’s name.  DW2 was given a receipt of E100.00 per person.  He says that he checked out on the 28/9/2004 and that the Court should disregard that PW15 Jabulile Dlamini had testified that he checked out on the 26/9/2004 because he was in South Africa on the 26/9/2004.

 

[76]   He says that after reserving the rooms he left with Sifiso and rushed to Simunye Club in order to keep his appointment set for 1.00p.m. with a Mr. Obed from Maputo the buyer of the Toyota Camry.  He says that before they reached Simunye Samuel telephoned to say that he had a breakdown at Emphangeni and that he would no longer be coming to Nisela.  Upon arrival at Simunye Obed liked the Toyota Camry and he paid E40,000.00 for it.  Thereafter DW2 and Sifiso travelled to Manzini in a kombi.  DW2 felt that it was illogical for him to return to Nisela when that deal had collapsed.

 

[77]   DW2 says that he was arrested by the Nhlangano police on the 30/9/2004.  He was travelling in a BMW and had the sum of E7,000.00 in his possession.  The Nhlangano police handed him over to the Lobamba police.  He says that he was informed about all the Counts that he has related but he denied any involvement in all of them.  He says that the police assaulted him.  They tortured him by suffocating him using a plastic tube.  The police put the plastic bag over his head and tied it around his neck and pressed a tyre tube over his mouth and nose while he was lying on his back facing up, he says that this torture is used to force suspects to confess.  It forced him to say anything in order to save his skin. 

 

[78]   He subsequently led the police to Our Lady of Sorrows School where they retrieved E125,000.00 from the ceiling of PW32’s house.  He says that from September 2004 to October 2004, the police never told him about his rights nor allowed him to consult with his attorneys nor did they caution him in terms of the judges rules.  He says that the police asked him to retrace his movements during the days prior to his arrest.  He led them to the home of PW17 where they found PW18.  The police asked PW18 for permission to search the homestead as they were searching for money and a bag.  She took them to a consulting room.

 

          Re: Count 15 (the silver grey Corsa Sedan)

[79]   He related that PW11 in her evidence in chief told the Court that she saw DW2 drive a brown Corsa sedan on the 4/9/2004 and that PW32 also stated in her evidence that when he arrived at her home, DW2 was driving a brown Corsa sedan.  He says that when it was allegedly damaged in order to destroy evidence and subsequently dumped at Mgubudla he was in custody at Lobamba.  It is worth noting that he has not answered the charge of theft of the motor vehicle from Silverton, South Africa.

 

Count 10, 11, 12 and 13 (firearms and ammunition)

[80]   He denied that he pointed out firearms and ammunition as related by PW48.  He did however say that the cartridge that was found at Texray matched the pistol that was found at the home of Accused 5 which statement was very telling as the evidence shows that he left that pistol at the home of Accused 5 concealed in a bag under the bed.

 

[81]   When he was cross-examined by Mr. Mabila representing Accused 1 DW2 maintained his story that there was a difference between a Ford Courier and a Ford Ranger; that the Crown witnesses made it clear that the motor vehicle used at Texray was a Ford Ranger; that the motor vehicle he sold to PW12 for spare parts was a Ford Courier, that he owned a Nissan 1 tonner and not a Datsun 1400; that the only travel document indicating his whereabouts between 21/9/2004 and 26//9/2004 is Exhibit B (defence).

 

[82]   He stated that Accused 1 did not travel with him to Nisela nor did Accused 1 sleep at Nisela.

 

[83]   It was put to him that Accused 1 denied planning and participating in the Texray robbery.

 

[84]   He was next cross-examined by Mr. Fakudze for the Crown to whom he admitted that he had known PW5 for four months before his arrest.  He agreed that on the 16/8/2004 he saw PW5 at her work place and that he asked her to give Accused 5 a bag that he left at the house of Accused 5.   When asked that the firearm that was used at Texray was found at Accused 5’s home, he responded that he agreed that the cartridge that was found at Texray matched the firearm that was found in Accused 5’s flat.

 

[85]   He stated that he knew PW41.  He met him on the 15/7/2004 at the home of PW42.  He knew PW42 through Accused 1 who was his friend.  He agreed that Accused 1; PW41; PW42, Makhenzi and himself met at the house of PW42 where they shared some money which had been given to them by Makhenzi.  Makhenzi said he had gotten the money from Desmond.  He agreed that he knew Mbuyiseni Nkambule (PW2) and that they had met on the 16/7/2004 at Malkerns and DW2 had given the former money to take to someone.  That he knew that Mbuyiseni was employed somewhere in Mankayane but did not know where.

 

[86]   He denied that PW2 had given him information about the Filling Station at Mankayane namely the times when it used to close before the robbery was committed.  He refuted PW2’s evidence that he had been to the Filling Station and had seen when and where the money was counted at the Filling Station.  He denied that he asked PW2 whether or not the security guard carried a gun.  He denied that he told PW2 that he wanted to rob the Filling Station.

 

[87]   It was put to him that PW2 had testified that he told him that the Filling Station closed between 7.30p.m. and 8.00p.m. and that the security guard did not carry a firearm but a knobstick.  He denied that such a conversation between him and PW2 ever took place.  It was put to him that he gave PW2 the sum of E700.00 for his services and not to inform the police.  He refuted this and stated that the E700.00 was to be delivered to his traditional healer for services rendered.

 

[88]   It was put to him that he together with Accused 1 and Makhenzi planned the robbery at Orion Sun at Ngwenya on the 16/7/2004.  He denied this.  It was put to him that PW41 and PW42 testified that he was the driver of the motor vehicle that carried them to Orion Sun and that he did not enter the premises.  He denied this and replied that he was at Malkerns when the robbery at Orion Sun had taken place.  It was put to him that after the robbery had taken place he drove back to Esitjeni the home of PW42 where the money was shared.  His response was that he was never at Esitjeni on that day.

 

[89]   With regard to the Texray robbery that occurred on the 23/7/2004 he denied being in the company of PW33 and PW42.  He agreed that PW33 was a brother to PW42 and that he had met him at the home of PW42 prior to the 23/7/2004.  DW2 denied that PW33 had picked him up on the 23/7/2004 and had dropped him off at Matsapha.

 

[90]   With regard to the robbery at Evukuzenzele he denied ever approaching PW14 (Mncedisi Mamba) to drive the getaway car.  He said that he knew Mamba from Manzini and could not have had any discussion with PW14 during October 2004 as he (DW2) was in custody at Big Bend.  He denied that he was the mastermind behind the robbery at Evukuzenzele as suggested by PW42 in his evidence in chief.

 

[91]   The defence case closed after DW2 was cross-examined.

 

          re Count1: Mankayane Filling Station

[92]   An analysis of the evidence shows that accused 4 approached PW2 and made enquiries about the Mankayane Filling Station.  After PW2 had given him the information the Filling Station was robbed on the 15/7/2004.  On the following day he telephoned PW2 and asked him if he had heard that the Filling Station was robbed the night before.  He then asked PW2 to meet him at Malkerns where he paid him E700.00 for his help and also for him not to inform the police about his involvement in the robbery.  PW2 denied that the E700.00 was for the traditional healer even though he admitted that the traditional healer was his cousin and that Accused 4 consulted him frequently for muti.

 

[93]   Accused 4 denied owning a Datsun 1400 but that he owned a Nissan 1 tonner.  This contradiction is not a material issue, moreso because the people who gave evidence on this point would not really know much about cars.  To them the motor vehicle was a white van and that is sufficient for the courts purposes.

 

[94]   PW3 an employee at the Filling Station testified that Accused 1 carried out the robbery on the 15/7/2007 at 8.00 p.m.  He stated that Accused 1 pointed a firearm at him and demanded the keys for the safe.  Fearing that he would be killed, he complied.  The amount that Accused 1 stole amounted to E20,550.00.

 

[95]   PW3 testified that when Accused 1 entered the Filling Station he called him by name and he (PW3) was able to see Accused 1.  He identified him in Court.

 

[96]   PW41 testified that on the 15/7/2004 he visited PW42 where he found Accused 1, 4 and Makhenzi.  They were in a white 1400 motor vehicle (van) which was idling ready to go.  The time was about 6.00 p.m. or after.  They left.  They later returned carrying a bag of money which they shared.  They also had a Nokia cell phone.  They all received E2000.00 including PW41.  He stated that Accused 1 explained that they had robbed the Filling Station at Mankayane.  Accused 4 thereafter asked all of them to contribute some money for PW2 who had supplied the information about the Filling Station.  They all contributed E100.00 except Accused 4 who said he would contribute E500.00

 

[97]   PW42 testified that he had earlier met with Accused 1, 4 and Makhenzi at his home at eSitjeni where they discussed the execution of the robbery at Mankayane Filling Station.  The idea came with Accused 4.  It was decided that Accused 1, 4 and Makhenzi should carry out the robbery.  PW41 arrived before the three left for Mankayane and was there when they returned.  PW42 was left behind but tasked to brief PW41 as to what was going to happen.  When they returned they were carrying money which they shared between them.  They kept E900.00 aside for PW2.  They also had in their possession a Nokia 3310 which they had stolen from the Filling Station.

 

[98]   PW2, PW41 and PW42 were accomplice witnesses who not only corroborated one another, they also corroborated PW3.  Above all they were credible witnesses as opposed to Accused 1 and 4 whose evidence was unimpressive.  I am satisfied that the Crown has proved its case beyond a reasonable doubt against Accused 1 and 4 in respect of Count 1.

 

          re:  Count 2: Orion Sun

[99]   PW4 testified that she was employed at Orion Sun and worked with the complainant Angel Xie.  That on the 16/7/2004 a man whom she was unable to identify walked into the factory and demanded money while pointing a gun at her, Angel and Emily the cleaner.  They robbed them of the money which was in the custody of Angel Xie.  The money amounted to E172,752.00.  She stated that the gun was long and had a black base similar to the gun that was an exhibit before Court.

 

[100] PW5 testified that on the 16/7/2004 he had gone to Orion Sun to pick up his wife who was employed there.  He saw three men who produced firearms.  One man entered the factory and one of the two pointed a firearm at him.  The latter took PW5 and the security guard to the guard house and ordered them to lie down.  But later he and the guard were ordered to go and join the others in the factory.  There the three assailants demanded money which they took.  He could only identify one assailant who was not in Court.

 

[101] PW41 testified that the robbery at Orion Sun was committed by Accused 1, Accused 4, Makhenzi PW42 and himself.  He had come with the idea to rob Orion Sun which idea he had gotten from a young lady who was employed at Orion sun to whom he had given a lift.  The young lady had given him details of when they normally got paid at Orion Sun.  Accused 4 had offered to get more information which he did.  On the day of the robbery Accused 1 was carrying a big firearm called an Uzzi, PW41 carried a 9 mm pistol and PW42 also carried a 9mm pistol.  Accused 4 drove the getaway car.   Makhenzi was ordered to remain in the getaway car with Accused 4 as it was feared that he would be easily recognized as he had lived in that area and was known. 

 

[102] PW42 testified that it was him who instructed the security guard that they should proceed to the office at gunpoint.  Accused 1 went to PW5 pointed a gun at him and ordered him to go to the office. PW42, Accused 1 and Makhenzi assaulted Angel and demanded money from her.  Ultimately they found the money and stole it.  They all drove to Esitjeni, the home of PW42 where they shared the money as detailed in paragraph 23 supra.  He did a dock identification of Accused 1 and Accused 4.

 

[103] PW42 corroborated the evidence of PW41 that after Accused 1, 4 and Makhenzi returned from Mankayane on the 15/7/2004, they discussed the plan to rob Orion Sun.  He further confirmed the evidence of PW41 that the latter had come with this idea.  Indeed they carried out the robbery.  It was him, Accused 1, Accused 4 and Makhenzi.  Accused 1, PW41 and PW42 carried firearms.  They drove in a white van which belonged to Accused 4 who was its driver that day.  After they had committed the robbery, they returned to Esitjeni where they shared the money.

 

[104] I accept the evidence of PW41 and PW42 who not only corroborate one another but also PW4 and PW5.  I  reject that of Accused 1 and accused 4.  It is my finding that the Crown has proved its case beyond a reasonable doubt in respect of Count 2 and I so hold.

 

          re Count 3: Texray robbery

[105] The Texray robbery took place on the 23/7/2004.  Accused 1 and Accused 4 denied taking part in its planning and execution.  On the contrary they were implicated by various witnesses.  PW8 identified Accused 1 as being on the Texray premises on the 23/7/2004 during the robbery.  He identified Accused 1 as the one who held PW6 and who kidnapped him.  PW6 testified that on the 23/7/2004 at about 3.00 p.m. two men entered Texray.  One pointed a firearm at him and ordered him to lie down while the second man proceeded to his co-workers who were packing money into pay envelopes.  The two men robbed them of this money and on their way out Accused 1 grabbed PW6 and they left with him.  PW6 stated that as they were driving away the bakkie reversed into the gate.  They dropped him off near Sundowners Lodge.

 

[106] The diary and emergency travelling certificate belonging to Accused 1 was found at Texray by PW30 (Chen).  Accused 1 testified that the diary was taken by Ndoda Mkhwanazi and Billy Shaw and that they were the ones who robbed Texray.  However, Mr. Shaw testified that he was not in Swaziland when the robbery took place but in South Africa.  The description by PW8 that one of the men was tall and light in complexion fits the description of Accused 1.  PW9 who had fetched the wages from the bank confirmed that the money amounted to E500,000.00 and that this amount was stolen from Texray by two men who held them up at gunpoint before making away with the money.  She too identified Accused 1 as the man who packed the money in a white bag with red stripes (konzekhaya).   After packing the money they left with PW6.  The evidence of PW6 with regard to being kidnapped is corroborated by PW8 and PW9.

 

[107] PW11 an accomplice witness met Accused 4 through a workmate Thobile Mabuza, a sister to Accused 4. Towards the end of June 2004 he drove with PW11 in a Nissan 1400 to Ngwenya Village to visit his girlfriend Thandi Masuku.  While there he told PW11 that he needed money from her place of employment, Texray.  He extracted from her details about the workforce and how they were paid.  She gave him the information that he needed.  While planning the robbery he took her to the home of PW42 at Esitjeni.  He was with PW32 a girlfriend.  There she met the rest of the gang namely PW42 and Accused 1.  Later, he gave PW11 the sum of E30.00 to enable her to telephone him when the money for wages was on the premises.  PW42 promised to give her E20,000.00 once the robbery had been carried out.

 

[108] On the 21/7/2004 Accused 4 telephoned her informing her that he would arrive at Texray on the 23/7/2004.  On the 23/7/2004, he telephoned her to inquire if the money had arrived.  This was at 2.00 p.m.   He informed her that he was on his way.  Shortly thereafter she heard a gunshot in the factory and the robbery was in progress.  On the 24/7/2004 Accused 4 telephoned her and asked her to meet him at Nhlangano together with Thobile Mabuza.  She did so and he gave her E10,000.00 as a reward for assisting in the robbery.  They travelled to Hluthi in a white Ford and Accused 4 told her that the Ford had been used in the Texray robbery.  She stated that indeed it had some damage on it and some royal blue paint which was on the gate at Texray.  The robbers had smashed into the gate as they made their getaway as stated by PW6.

 

[109] She stated that he informed her that his role in the robbery was to shut the spaza phone at Texray and chase away the security guard at the gate.  On the 4/9/2004 she met him and he was driving a Corsa Sedan which she identified together with the Ford van outside Court.  She stated that Accused 4 did not go into the factory at Texray because he was the driver of the getaway car.  PW12 testified that he purchased the Ford from Accused 4 in order to harvest spare parts from it for his motor vehicle.  His mechanic PW13 informed him that Accused 4 was selling it.

 

[110] PW41 gave evidence that implicated Accused 1 and Accused 4 in the commission of the Texray robbery.  He stated that the gang planned this robbery and even purchased a car in South Africa in order to carry it out.  Accused 1 and Makhenzi fetched the car a Ford Intercooler from South Africa for this purchase.  His evidence which was very lengthy describes the extent to which he and his partners in crime purchased the motor vehicle and how they bribed a police officer in order for Accused 1 and Makhenzi to cross with it at the border into Swaziland.  However, he did not take part in the Texray robbery, he remained in Nelspruit where he had planned to execute another robbery.

 

[111] PW33 testified that the Ford Intercooler was brought to their home at Esitjeni by Accused 1 and Makhenzi.  He stated that on the day of the Texray robbery, PW42 instructed him to go and wash the Ford at Lobamba car wash.  While there PW42, Accused 1, Accused 4 and Makhenzi arrived in a white Sentra.  PW42 instructed him to drive the Sentra while Makhenzi drove the Ford accompanied by Accused 1.  In the Sentra was PW41, PW42 and Accused 4.  PW42 instructed him to follow the Ford.  Along the way at Mahlanya Accused 4 alighted and purchased a bag which he gave to Accused 1 and Makhenzi. At Matsapha PW42 dropped off near Swaziland Breweries and Accused 4 at Matsapha Fire Station.  Both these places are within walking distance to Texray.  Later on he collected both PW42 and Accused 4 and drove them to Mhlambanyatsi to the flat of Accused 1 where they found Accused 1 and Makhenzi.  Earlier on when he had dropped off Accused 4, he was armed with a firearm which he had hidden in a black bag and he was still carrying it when he picked him up.  He says that he was rewarded by PW42 in the amount of E5,000.00.

 

[112] PW42 also implicated Accused 1 and Accused 4 with the robbery at Texray.  He corroborates the evidence of PW41 that Accused 1 and Makhenzi went to purchase the Ford Intercooler in South Africa and PW41 facilitated its crossing into Swaziland.  He also corroborated PW41 in that the Ford was used in the robbery at Texray.  The plan to rob Texray was hatched by him, PW41, Accused 1, Accused 4 and Makhenzi.  And that PW11 had facilitated the robbery from the inside.

 

[113]  He corroborated the evidence of PW33 that on the date of the robbery (23/7/2004) he and Accused 4 travelled in a Sentra to Matsapha driven by PW33; Accused 1 and Makhenzi travelled in the Ford driven by Makhenzi.  Accused 4 carried an Uzzi gun while Makhenzi carried a pistol.  Along the way Accused 4 purchased a bag in which to put the money.  He handed the bag to Accused 1 and Makhenzi.  He stated that he did not take part in the robbery as he alighted at the BP Fillig Station and Accused 4 rode on towards Texray.  Later on he was picked up by PW33 and they collected Accused 4 and drove to the flat of Accused 1 at Mhlambanyatsi.  Ultimately they all landed up at the home of PW42 at Esitjeni where they shared the money; Accused 4 shared it out.  Makhenzi admitted that they had bumped the gate at Texray when they drove out.  Accused 4 purchased the Ford for E10,000.00.  They also agreed to give PW41 E5,000.00 as they did not want him to report them to the police as he was in on the robbery from the start.  His share of the loot was E51,700.00.

 

[114] When he was cross-examined PW42 confirmed that he had sold one Kombi to Accused 1 for E70,000.00 and that Accused 1 had bought another Kombi from Albert Mngomezulu.  He confirmed that Accused 1 sold the dagga from which he made a lot of money together with Accused 2 and 3.  PW42 corroborated the evidence of PW11 that he had met with her, Accused 1 and Accused 4 about the Texray robbery and that he had promised to give her E20,000.00 after the robbery but that when they realized that the money was not as much as they had expected Accused 4 suggested that they give her E10,000.00.  PW42 also gave lengthy evidence which appears fully in my judgment which was delivered on the 16/06/2009 upon their application for discharge at the end of the Crown case in terms of section 174 (1) of the Criminal and Evidence Act No. 67/1938.

 

[115] I believe the evidence of PW11, PW33, PW41 and PW42 and reject that of Accused 1 and Accused 4 with regard to the robbery at Texray.  It is my considered view that the Crown has proved its case beyond a reasonable doubt with regard to the robbery at Texray and the involvement of Accused 1 and Accused 4.

 

 

          re: Count 6: Robbery at Evukuzenzele, Siteki

[116] The robbery at Evukuzenzele was committed on the 25/9/2004.  PW7 testified that she was robbed of the sum of E2,000,000.00 (Two million) which was in her custody as accountant of the Evukuzenzele supermarkets.  The money was in denominations of E100 notes, E50 notes, E200 notes, E20 notes and E10 notes.  The money was packed into 8 plastic bags for each outlet and the plastic bags would then be packed into a suitcase and taken to the bank.  On the 25/9/2004 the plastic bags were packed into a maroon suitcase marked Evukuzenzele Siteki on the inside cover.  Such a suitcase was later recovered at the home of PW17 and PW18 at Zombodze Emuva where Accused 4 had slept and left it.  PW17 is the traditional healer of Accused 4.

 

[117] PW7 stated that when she went to bank the money she was escorted by PW34 and PW19 who were security guards.  She says the maroon suitcase which had the money was carried by PW 34.  Along the way they were robbed by two men who were carrying guns.  The men boarded a silver grey Opel Corsa which was boarded by a third man before it drove off.  It had South African number plates.  The driver was the fourth man.  She stated that at the time the car drove away a police officer had fired a shot which hit the left passenger window.  The following Thursday she and PW19 attended an identification parade wherein she identified Accused 1 and 2.  PW34 corroborated the evidence of PW7 that he was carrying the maroon suitcase containing the money when they were robbed on the way to the bank.  PW19 also corroborated the evidence of PW7 and PW34 and that at the identification parade he identified Accused 1.  PW7 also identified outside Court the silver grey Opel Corsa which had no glass on the left passenger window.

 

[118] PW43 the owner of Evukuzenzele supermarkets corroborated PW7 with regard to the amount of money that was stolen.  PW20 corroborated the evidence of PW7 that the getaway car was a silver grey sedan.  He shot at it once he realized that a robbery was being committed.  The first bullet landed on the edge of the left front passenger door and the second bullet hit the left passenger window.  This evidence corroborates the evidence of PW7.  PW20 corroborated the evidence of PW7, PW19 and PW29 with regard to how the robbery took place as he witnessed it as well as that the car had South African number plates.  PW 29 also attended the identification parade where he identified Accused 1 and Accused 2.  He stated that Accused 1 had taken the maroon suitcase from PW34 and Accused 2 had pointed the firearm at the security guard.

 

[119] PW14 testified that Accused 4 tried to recruit him to drive the getaway car but he declined.  Accused 4 informed him that he was going to rob Evukuzenzele.  He says that Accused 4 was driving a silver grey Opel Corsa.  PW37 an accomplice witness implicated PW42 in the Evukuzenzele robbery.  PW42 wanted to recruit someone who knew Siteki very well and PW37 recruited one Bheki Shongwe (Accused 7).

 

[120] PW42 also an accomplice witness related to the Court that Evukuzenzele.  He stated that the robbery would be carried out by Accused 1, Accused 4, Makhenzi and himself.  However, he could not take part as he had a previous engagement at Simunye.  They then recruited Accused 2 to replace him.  He said that the idea to rob Evukuzenzele had come with Accused 4.  He stated that on the date of the robbery they could not find Makhenzi so they replaced him with Accused 3.  He proceeded to Simunye.  Later on Accused 1 telephoned him and advised him that the robbery had gone well and that they should meet in Big Bend. As he was travelling to Big Bend, Accused 4 telephoned him and informed him that they should meet at Nisela a lodge just outside Big Bend.  He met Accused 1, 2, 3 and 4 at Nisela Lodge at Nsoko.  Accused 4 had already shared the money out in 5 piles of money.  After that they left except Accused 4 who had to take of the suitcase, eating fork which PW43 used to clip the money and two pistols.

 

[121] When PW42 gave evidence he was very credible more than Accused 4.  I believe the evidence of PW42 and reject that of Accused 4.  During the unfolding of the evidence it became very clear that all the accused persons were on a reign of terror.  Even though Accused 1 and Accused 4 informed the Court of the sources of their income namely dagga trafficking, motor vehicle thefts which may be true but I do not believe their explanations with regard to the amounts of money that was found in their possessions soon after each heist on the various establishments they are charged of robbing.

 

[122] It is my considered opinion that the Crown has proved its case beyond a reasonable doubt in respect of the robbery at Evukuzenzele, Siteki.

 

[123] Accused 4 made a great deal about not being in Swaziland during the Siteki robbery and even made a great show of showing the court his travel document with the border stamp.  Be that as it may Swaziland has many informal crossings which car thieves are particularly privy too.  Accused 4 is a self-declared car thief and he would know these crossings and it would be easy to cross the border legitimately and return to carry out his nefarious deeds illegally and re-cross and return legitimately.  He made a great deal about not being at Nisela and that PW15 was mistaken that she had seen him there.  I believe the evidence of PW15.  She had no reason to lie or to implicate him.  Furthermore she was not even an accomplice witness.  PW42 says that he was there.  He shared out the money.  I believe PW42 and PW15.

 

[124] PW48 testified that Accused 4 led him and other police officers to his parental homestead at Nkungwini.  The following were found hidden in the ground.

 

A 9mm pistol CZ75 without a serial number which is the subject of Count 10.

 

There were 10 live rounds of ammunition found in its magazine.  They are the subject of Count 11.

 

A 9mm star pistol without a serial number which is the subject of Count 12.

 

There were 4 live rounds of ammunition found in its magazine.  They are the subject of Count 13.

 

[125] Accused 4 did not have any licence or permit for any of the items listed above.  According to the evidence of the ballistics expert Hendriena Johanna Blignaut, the two firearms were serviceable.  Her evidence which was on affidavit was handed in by consent of all the parties. 

 

[126] I have no hesitation in accepting the evidence of PW48.  In my view the Crown has proved its case beyond a reasonable doubt in respect of Counts 10, 11, 12 and 13. 

 

          re Count 15

[127] In this Count Accused 1, 2, 3 and 4 were charged with the theft of the Opel Corsa FDZ 719 NW on the 7th August 2004 at Silverton, South Africa.  The motor vehicle belonged to A. Van Niekerk and was valued at E150,000.00 (One hundred and fifty thousand Emalangeni).

 

[128] PW11 testified that she saw Accused 4 in a (brown) Opel Corsa sedan on the 4/9/2004.  PW32 also stated that when he arrived at her home in Hluthi he was driving a (brown) Corsa sedan.  PW15 also says that when he arrived at Nisela he drove a silver grey Corsa sedan.  PW7 described the getaway motor vehicle as being a silver grey Opel Corsa with G.P. number plates.  PW19 testified that the men who robbed them along the way to the bank drove away in a silver grey sedan.  PW20 testified that he saw a silver grey sedan with G.P. number plates and he fired two shots at it when he realized that a robbery had taken place.  PW29 testified that he too saw the silver grey motor vehicle which had South African number plates.  And that the robbers were driving in it.  All these witnesses identified the silver grey Opel Corsa outside.

 

[129] I am satisfied that Mr. Van Niekerk is the owner of the Corsa as evidenced by the report filed by G.W.  de Jager, 0089688-8 D/Inspector dated 30/11/2004.  The motor vehicle was reported stolen from Silverton, South Africa on the 7th August 2004.  I am satisfied that it was used in the robbery at Evukuzenzele Siteki by the 4 accused persons.  PW20, 4627 Detective Constable Sipho Ndzinisa fired two shots at the silver grey Corsa as it made its get away after the robbery at Siteki.  The first shot landed on the edge of the front left passenger door.  The second shot shattered the front left passenger window.  Indeed the motor vehicle exhibited outside court had not left front passenger window.

 

[130] In the circumstances the Crown has proved its case beyond a reasonable doubt in respect of Count 15.

 

          re Count 16

[131] In this Count Accused 1 is charged with the offence of kidnapping Dexter Fonseka PW6.  The evidence in regard to this Count is set out under Count 3.  There is no need for me to repeat it save to state that PW8, Bheki Sydney Zeeman identified Accused 1 as the one who held PW6 as the assailants  left Texray after the robbery.  PW9, Nomsa Nkambule’s evidence places Accused 1 at the Texray scene of the crime.  On the 4/10/04, PW6 identified the Ford Intercooler which had spirited him away after the commission of the robbery at Texray.  The motor vehicle was now in pieces.  It was the same motor vehicle outside Court.  I am satisfied that the Crown has proved its case beyond a reasonable doubt against Accused 1 in respect to Count 16.

 

[132] Having found that the Crown has proved its case beyond a reasonable doubt in respect of all the counts relating to Accused 1 and Accused 4 I find as follows:

 

Count 1                          -        Accused 1 and Accused 4 are found

guilty as charged.

 

Count 2                          -        Accused 1 and Accused 4 are found

guilty as charged.

 

Count 3                          -        Accused 1 and Accused 4 are found

guilty as charged.

                  

                  

Count 6                          -        Accused 1 and Accused 4 are found

guilty as charged.

 

                   Count 10                        -        Accused 4 is found guilty as charged

                   Count 11                        -        Accused 4 is found guilty as charged

                  

                   Count 12                        -        Accused 4 is found guilty as charged

 

                   Count 13                        -        Accused 4 is found guilty as charged

 

Count 15                        -        Accused 1 is acquitted and discharged

of this Count. Accused 4 is found guilty as charged.

 

                   Count 16                        -        Accused 1 is found guilty as charged.

 

 

 

 

 

 

             

 

 

 

 

JUDGMENT ON SENTENCE

 

MABUZA –J

[1]     Mr. S. Dlamini for the Crown advised the Court that both accused persons were first offenders and that they had no previous convictions.

 

[2]     Mr. Mabila mitigated as follows in respect of both accused persons:

                  

Accused 1

That he was 34 years old now and was about 22 years old during 2004 when he was involved in the commission of the offences of which he has been convicted.  He is now married with two minor children.  His wife and himself run several businesses.  His friends helped set him up in business so that he would desist from a life of crime.

 

[3]     Mr. Mabila says that investment has paid off because Accused 1 has been living a reformed life from when he was released on bail during January 2010.

 

[4]     He has also been involved in charity work at Msunduza where he runs a business.  The business together with eMlulwini looks after the care point (kitchen) at Msunduza.

 

[5]     That he has a chronic ailment of gallstones and severe ulcers.

 

Accused 4

[6]     I was informed that Accused is 46 years old and that he was 34 years old when he was involved in the commission of the offences of which he has been convicted.

 

[7]     That since his release on bail he has married and has 1 minor child with his wife.  He also has five other children and the eldest is 21 years old.  The five children are all still in school.  He also looks after his 81 year old father.

 

[8]     He suffers from severe asthma.  He operates two businesses, fitting window blinds and stock farming.

 

[9]     I was informed that since their release on bail in January 2010 they have not been involved in any criminal activity for the past 6 years and have both led a reformed life.

 

[10]   I was told that since their release on bail they complied with the bail conditions.

 

[11]   That before their release on bail during 2010 they had spent 6 years in custody having been arrested during September 2004.

 

[12]   That they had both learned their lessons and had since been rehabilitated.

 

[13]   I shall take the above factors into account in passing sentence.

 

[14]   In addition in their favour the investigation officers testified that they were both very co-operative when investigations were being conducted.

 

[15]   I also take into account that all the postponements in this case were at the instance of the Crown not the accused persons.  It was a long case with over 60 witnesses and the postponements were not conducive to its completion.

 

[16]   I am told that even when the exhibits were released at the instance of Mr. Motsa and the Crown they did not lay claim to the exhibits. 

 

[17]   That nobody was killed during these robberies

 

[18]   In as much as I accept their remorse and reforms, I still have to take into account that they terrorized innocent victims.  Affected witnesses informed me that they would walk into their respective business premises pointing guns at them and would order them around forcing them to submit by handing over their hard earned money.

 

[19]   Witnesses recalled the terror in thinking that they would be killed when they stared death in the face when confronted with the firearms.  All of them were still extremely traumatized when they gave evidence.

         

[20]   Society must be kept clear of terrifying elements and the accused persons must be punished for their reign of terror which lasted for some months before they were apprehended by the police.

 

[21]   I also note the rampart use of guns and this practice must be stamped out aggressively.

         

[22]   I also note the embarrassment to the country by car thieves who cross the borders and steal innocent peoples’ motor vehicles in neighbouring countries.  This habit must also be stamped out.  However, I have taken into account that there was no threat to the life of Mr. Van Niekerk nor was the motor vehicle hi-jacked.

 

[23]   In the circumstances the accused are sentenced as follows:

 

Count 1      -        The accused are each sentenced to 2 (two) years’

imprisonment without an option of a fine.

 

                   Count 2      -        The accused are each sentenced to 3 (three) years’ 

imprisonment without an option of a fine.

 

                   Count 3      -        The accused are each sentenced to 4 (four) years’ 

imprisonment without an option of a fine.

 

                   Count 6      -        The accused are each sentenced to 6 (six) years’ 

imprisonment without an option of a fine.

 

                   Count 10    -        Accused 4 is sentenced to a fine of E5,000.00 (Five

thousand Emalangeni) and in default to 5 years’ imprisonment.

 

                   Count 11    -        Accused 4 is sentenced to a fine of E1,000.00 (One 

thousand Emalangeni) and in default to 12 months’   imprisonment.

 

                   Count 12    -        Accused 4 is sentenced to a fine of E5,000.00 (Five

thousand Emalangeni) and in default to 5 years’ imprisonment.

 

Count 13    -        Accused 4 is sentenced to a fine of E500.00 (Five

hundred Emalangeni) and in default to 5 months’ imprisonment.

 

                   Count 15    -        Accused 4 is sentenced to 3 (three) years

imprisonment without an option of a fine.

 

          Count 16    -        Accused 1 is sentenced to twelve months

imprisonment without an option of a fine.

 

 [24]  The sentences in respect of Count 1, 2, 3, 6, 15 and 16 are hereby ordered to run concurrently.  They are backdated to 27th September 2004 when both accused persons were arrested

 

[25]   The sentences in respect of Count 10, 11, 12 and 13 are hereby ordered to run concurrently and are backdated to 27th September 2004, when Accused 4 was arrested.

 

[26]   The exhibits in respect of Count 10, 11, 12 and 13 are to be destroyed by the police and a certificate of destruction to be filed with the Registrar of this Court within a month from this order.

 

 

 

                                                                    Q.M. MABUZA

                                                                   JUDGE OF THE HIGH COURT

 

         

FOR THE CROWN                                    :         MR. S. FAKUDZE

FOR 1ST, 2ND, 3RD AND 4TH ACCUSED    :         MR. M. MABILA

FOR THE 5TH AND 6TH ACCUSED          :         MR. B.J. SIMELANE

FOR THE 7TH ACCUSED                          :         MR. S. MAGONGO