THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 52/2018 and 149/2018
In the matter between:
NAZIER AHMED TIRY

FIRST APPELLANT
PATRICIA DUDU NONO SANGWENI
SECOND APPELLANT
SIPHO ABRAM TSHABALALA

THIRD APPELLANT
SANDILE ANTHONY NYAMUSA

FOURTH APPELLANT
MSOLENI GOODENOUGH MTHETHWA

FIFTH APPELANT
QHEKEKA ALFRED BUTHELEZI

SIXTH APPELLANT
VELI MAXWELL SITHOLE

SEVENTH APPELLANT
SOLOMON NKOSI

EIGHTH APPELLANT
JOSEPH MOISI

NINTH APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Tiry and Others v The State (52/2018 and 149/2018)
[2020] ZASCA 137 (29 October 2020)
Coram:
WALLIS, MAKGOKA and PLASKET JJA
Heard:
The matter was disposed of without an oral hearing in terms of
s 19(a) of the Superior Courts Act 10 of 2013.

Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, and by publication on the Supreme Court of
Appeal website and release to SAFLII. The time and date for hand down is
deemed to be 10h00 on the 29th day of October 2020.
Summary: Prevention of Organised Crime Act 121 of 1998 (POCA) – sections
(1)(e) and 2(1)(f) thereof – meaning of the phrase ‘conducts or participates in the
conduct, directly or indirectly, of such enterprise’s affairs’ – conviction under
both s 2(1)(e) and s 2(1)(f) – whether amounts to duplication of convictions.

________________________________________________________________
ORDER
________________________________________________________________
On appeal from: Free State Division of the High Court, Bloemfontein (Moloi J
sitting as court of first instance).
The following appeals succeed and the convictions and sentences are set
aside:
(a)
Appellants 1 and 2, Mr Tiry and Ms Sangweni, in respect of counts 4, 8,19,
20, 22, 23, 25, 30, 34, 35, 42, 43 and 45 in their entirety, and in respect of count
33 to the extent that the conviction of theft is altered to one of attempted theft;
(b)
Appellant 3, Mr Tshabalala, in respect of counts 2, 34 and 35;
(c)
Appellant 4, Mr Nyamusa, in respect of count 2;
(d)
Appellant 6, Mr Buthelezi, in respect of counts 2, 19 and 45;
(e)
Appellant 7, Mr Sithole, in respect of counts 22 and 35;
(f)
Appellant 9, Mr Moisi, in respect of count 2.
All the other appeals against conviction are dismissed and the order of the
high court is amended to reflect that Mr Nkosi, appellant 8, was convicted on
counts 14, 31 and 32.
Mr Tiry’s appeal against sentence succeeds to the extent reflected below:
(a)
The sentence of 30 years’ imprisonment imposed on count 1 is set aside
and substituted with a sentence of 20 years imprisonment;
(b)
The sentence of 20 years imprisonment imposed on count 2 is set aside and
replaced by a sentence of 15 years imprisonment to run concurrently with the
sentence on count 1;

(c)
The sentence of 15 years imprisonment on count 33 is set aside and
replaced by a sentence of 3 years imprisonment;
(d)
It is ordered that the sentence of 15 years’ imprisonment imposed in respect
of each of counts 3, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21, 24, 26, 31,
32, 36, 39, 40 and 41, and the 3 years’ imprisonment on count 33, shall run
concurrently with the sentence of 20 years imprisonment imposed on count 1.
The effective sentence is 20 years’ imprisonment.
Ms Sangweni’s appeal against sentence succeeds to the extent set out
below:
(a)
The sentence of 18 years imprisonment imposed on count 2 is set aside and
replaced by a sentence of 12 years imprisonment;
(b)
The sentence of 15 years imprisonment on count 33 is set aside and
replaced by a sentence of 3 years imprisonment
(c)
It is ordered that the sentence of 15 years’ imprisonment imposed in
respect of each of counts 1, 3, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21, 24,
26, 31, 32, 36, 39, 40 and 41, and the 3 years’ imprisonment on count 33, shall
run concurrently. The effective sentence is 12 years imprisonment;
The appeals against sentence by appellants 3, 4, 6, 7, 8 and 9 succeed. Their
existing sentences on each count on which their convictions were upheld are set
aside and replaced by sentences of 7 years imprisonment on each count, all such
sentences to run concurrently. The effective sentence in each case is 7 years
imprisonment.
In terms of s 282 of the Criminal Procedure Act 51 of 1977 (the CPA) the
substituted sentences are antedated to 13 October 2016, being the date on which
the appellants were sentenced.

________________________________________________________________
JUDGMENT
________________________________________________________________
Wallis et Makgoka JJA (Plasket JA concurring):
[1] The appellants’ convictions and sentences to lengthy terms of
imprisonment arose from the operation of two tank farms for the receipt and
storage of stolen petroleum products and the sale of the stolen product to the retail
market and end users. The tank farms were established by the first appellant,
Mr Tiry, who was the kingpin of the entire unlawful operation. Arising out of the
operations of these two tank farms, he and his partner, the second appellant,
Ms Sangweni, were both charged on count 1 with managing an enterprise
conducted through a pattern of racketeering activities in terms of s 2(1)(f) of the
Prevention of Crime Act 121 of 1998 (POCA). Together with the remaining
appellants they were also charged on count 2 with conducting or participating in
an enterprise conducted through a pattern of racketeering activities in terms of
s 2(1)(e) of POCA. In addition, Mr Tiry and Ms Sangweni were charged with
43 separate counts of theft of petroleum products arising from their acquisition of
the petroleum products. The remaining appellants were charged with theft in
respect of those transactions with which they were involved. The appellants were
convicted on various counts on 7 June 2016 and sentenced pursuant to those
convictions by Moloi J in the Free State Division of the High Court,
Bloemfontein.
[2] The appellants appeal against both their convictions and their sentences.
Moloi J having died after the trial, leave to appeal was granted by Rampai J. The
following are the convictions and sentences that are the subject of the appeal:

(a)
Appellant 1, Mr Tiry, was convicted on count 1 and sentenced to 30 years
imprisonment. Appellant 2, Ms Sangweni, was acquitted on count 1 but convicted
on count 2 and sentenced to 18 years imprisonment.
(b)
Mr Tiry and appellants 3, 4, 5, 6, 7, 8 and 9 were convicted on count 2.
Mr Tiry was sentenced to 20 years imprisonment and each of the others to 15
years imprisonment. In the case of Mr Tiry this was to be served concurrently
with his sentence on count 1.
(c)
Appellants 1 and 2 were convicted of theft on counts 3 to 26 and 30 to 45
and sentenced to 15 years imprisonment on each count to run concurrently with
their sentences on count 1 and 2 respectively.
(d)
Each of appellants 3, 4, 5, 6, 7, 8 and 9 was convicted of various counts of
theft and sentenced to 15 years imprisonment on each count, to run concurrently
with their sentences on count 2.
[3] The effect of the sentences imposed was the following: in the case of
Mr Tiry an effective sentence of 30 years imprisonment; in the case of
Ms Sangweni an effective sentence of 18 years imprisonment; and in the case of
each of the remaining appellants an effective sentence of 15 years imprisonment.
[4] Some matters need to be clarified at the outset. Another accused, Mr Elliot
Thembisiline Njalula, formerly accused 8, died during the trial. In the result
Messrs Nkosi and Moisi, who are reflected in the record as accused 9 and 10
respectively, are appellants 8 and 9. Appellant 5, Mr Mthethwa, has died since
the appeal was lodged. Accordingly, his appeal falls away. Appellant 8,
Mr Nkosi, is reflected in the court order as having been convicted on counts 9, 31
and 34 and sentenced to an effective 15 years imprisonment. That was a patent
typographical error by the registrar in regard to the relevant counts, as he was

charged with counts 14, 31 and 32 and it is apparent from the judgment that it
was on these counts that he was convicted. No point was made of this in argument
and the count numbers can be corrected in this court’s order. Appellant 6,
Mr Buthelezi, allowed his appeal to lapse, but brought an application to reinstate
it, which was not opposed. His appeal was accordingly reinstated.
[5] Due to the fact that the events giving rise to the various counts occurred in
two different areas of jurisdiction, Free State and Limpopo, the Director of Public
Prosecutions issued a directive in terms of s 111 of the Criminal Procedure Act
51 of 1977 authorising the trial court to deal with those counts which arose outside
its jurisdiction.
The factual background
[6] The trial was protracted. The evidence was not led in any sequential
manner due to a number of interruptions caused by, among others, the ill-health
of former accused 8 and, on occasions, the judge; the unavailability of certain
witnesses on certain dates; and objections by defence counsel to the leading of
certain evidence by the State. However, the State’s case against the appellants
can be summarised as follows. The principal complainants, Sasol and Engen, are
producers of petroleum products. They use freight companies to transport their
products with tankers to various central destinations around the country, in this
case, the Sasol refinery at Secunda and the Engen depot in Mokopane. Two
counts (25 and 26) involved another producer BP Southern Africa and the
transport of fuel to its depot in Pretoria.
[7] Mr Tiry and Ms Sangweni were lovers, and initially lived on Zutundu farm
(Zutundu) in Mookgophong (formerly Naboomspruit) in Limpopo Province,
where an unlawful tank farm was operated supplying petroleum products
throughout the province as far as Musina. When this enterprise was discovered

and Mr Tiry arrested, he and Ms Sangweni moved to Free State and a new
unlawful tank farm operation was established on a farm, Quarry Hoek,1 near
Warden. The evidence showed that Mr Tiry was the mastermind of, and ran, a
criminal enterprise through which he stole petroleum products from Sasol and
Engen, using the tank farms at both Zutundu and Quarry Hoek for this purpose.
The farms were strategically situated in close proximity to the national roads used
by the freight companies to transport Sasol and Engen’s petroleum products. Both
farms were surrounded by high walls, and a number of bulk storage tanks and
pipes had been erected, which were used to decant and store the products. Mr Tiry
was said to have had contact with the tanker drivers (among others, appellants 3,
4, deceased appellant 5 and appellants 6 and 9), who would divert from their
routes onto the farms and unlawfully decant petroleum products there. Mr Tiry
would pay them for this and later on-sell the stolen products to fuel retailers and
possibly others at a reduced price lower than the regulated price. These activities
gave rise to counts 1 and 2 under the provisions of POCA.
[8] The charges faced by the appellants were in two categories. Counts 3 to 11
(all predicated on counts 1 and 2) were allegedly committed at Zutundu. The
stolen petroleum products were loaded from Sasol’s Secunda plant, and were
destined to be delivered at the Engen depot in Mokopane, or in one instance at
Rustenberg. The basis for the charges was that drivers of tankers carrying diesel
or petrol consigned to the Engen depot would divert to Zutundu, discharge all or
part of their cargo in return for payment of an agreed price and then Mr Tiry
would dispose of the stolen product to various retail outlets and possibly others.
The evidence showed that the drivers were aware that if they diverted in this way
Mr Tiry would purchase the product they were carrying. It was not established
how the drivers came to know this, although a list of drivers’ mobile phone
numbers was found on a phone belonging to Mr Tiry and one witness, who

1 This name is an adaptation of Guarrihoek, the original name of one of the farms forming part of the property.

testified in terms of s 204 of the CPA, said that he received a phone call from
Mr Tiry.
[9] The thefts in counts 12-26 and 30-41 (also all predicated on counts 1 and
2) were allegedly committed at Quarry Hoek. The stolen products were loaded at
Island View Storage (IVS) in Durban and were destined for Sasol’s tank farm in
Secunda. As with the other counts, the State alleged that the products did not
reach their destination, but were decanted on Quarry Hoek. Appellants 3, 4, 6, 7,
8 and 9 are implicated in this regard. Appellants 3, 4, 6 and 9 were the drivers for
various freight companies, whilst appellants 7 and 8 were employed by Sasol in
Secunda as officials entrusted with receiving products from IVS delivered by
appellants 3, 4, 6 and 9. They allegedly falsified documents to the effect that
tankers were shown as arriving in Secunda and off-loading petroleum products,
whereas, in fact, the tankers either never entered the tank farm, or arrived there
with a tank containing water.
[10] The State led evidence both of a factual and technical nature. The
appellants did not testify in their own defence, but led the evidence of three
technical witnesses. We do not intend burdening this judgment with the testimony
of each witness. Where necessary, we will refer to the specific aspects of a
particular witness’ evidence.
Zutundu counts
[11] In respect of the Zutundu counts, the trigger for their discovery was the
events of 3 May 2006. A tanker belonging to Rand Forwarding and Freight was
instructed by Mr Moolman of MBT Petroleum to collect a consignment of 42 000
litres of diesel from Total in Alrode and deliver it to Marikana near Rustenburg.
The truck did not reach its destination, and was found abandoned in
Naboomspruit on 4 May 2006. Its driver, Mr Victor Mabule, disappeared without

a trace. This event led to an investigation, using information from the vehicle's
satellite tracking equipment, which led the police, Mr Moolman and
Mr van Eeden from Rand Forwarding and Freight to Zutundu farm. There, diesel
was found in a tank erected on the farm. This diesel was compared with residual
diesel in the pipes of the tanker and found to match it in both colour and
appearance. On that basis it was reloaded for delivery, although there was a
shortfall of some 3 000 litres. Mr Tiry was present while this happened. These
facts formed the basis of count 3.
[12] The discovery of the tank farm at Zutundu led to a further investigation,
which revealed that between 13 December 2005 and February 2006, petroleum
products loaded from Sasol, Secunda, and destined for the Engen depot in
Mokopane did not reach their destination. Mr du Preez testified that, after
measuring the supposed deliveries against sales and the quantities left in the
storage tanks at the depot, over 200 000 litres of premium petrol and nearly
240 000 litres of diesel was not delivered. The vehicle satellite tracking reports
for tankers making deliveries to the depot revealed that some tankers deviated to
Zutundu, and in most instances remained there for long enough to discharge their
cargo. Appellant 4 was the driver in counts 5, 7, 9 and 10. In counts 4, 6, 8, and
11 the drivers all disappeared without a trace. In count 4 the evidence was that
the tanker was only stationary at Zutundu for 8 minutes and 50 seconds, while in
count 8 no evidence was given of how long the tanker remained at Zutundu.
[13] Evidence against Mr Tiry was given by an owner of a fuel retailer and the
employee of another, who operated fourteen service stations in the vicinity of
Mokopane, Naboomspruit and Polokwane. They testified that they used to buy
petroleum products from Mr Tiry at below market value. One described the petrol
as ‘hot’2, conveying that he knew it was stolen. All testified that Mr Tiry would

2 He testified in Afrikaans and used the word ‘warm’, meaning ‘hot’.

insist on cash payment or cash cheque, and issued no receipts or invoices. It was
common cause that Mr Tiry had no licence to deal in petroleum products.
Considerable quantities of petroleum products were purchased from Mr Tiry. The
evidence of the two witnesses was corroborated by a businessman and a friend of
Mr Tiry's, Mr Jose dos Santos, who testified that he knew that he sold petroleum
products.
Quarry Hoek
[14] The facts giving rise to the Quarry Hoek counts took place subsequent to
Mr Tiry’s arrest and release on bail, following the exposure of his activities at
Zutundu. In a deceptive violation of his bail conditions, in June 2006, Mr Tiry
moved to Quarry Hoek with Ms Sangweni. There, he purchased the Quarry Hoek
property through his friend and proxy, Mr dos Santos, and immediately set up a
similar infrastructure to that he had previously utilised at Zutundu. A high wall
was erected around the property; tanks, pumping equipment and appropriate pipe
lines were installed, some inside a large shed and some outside; and a large dam
was built on the property to hold the water that would replace the contents of the
tankers once off-loaded. Two huge steel tanks and 53 JoJo plastic tanks of
different sizes were also set up on the farm to keep the stolen petroleum products.
[15] Quarry Hoek was situated north of Warden and slightly off the N3 national
road that tankers would use when conveying petroleum and diesel products from
Durban to the Sasol tank farm in Secunda. A large, prominent sign pointing to
the farm was erected on the road, ostensibly to guide the drivers. The man who
set up this infrastructure at the instance of Mr Tiry, Mr Willem Basson, testified
about this. He also testified that Mr Tiry specifically told him that the intention
of the infrastructure was to set up a fuel depot and that on behalf of Mr Tiry he
solicited sales and made deliveries of fuel. After these activities were discovered

by the police a considerable quantity of petroleum products was discovered in the
tanks on the farm and shown after testing to belong to Sasol.
[16] The main witness in respect of the Quarry Hoek counts was Mr Fredolines
Peach, a forensic investigator, who had been engaged by Sasol to investigate the
cause of its losses. Mr Peach testified from a spreadsheet he co-authored with the
investigating officer, Warrant Officer Gert van der Merwe. The contents of the
spread-sheet included particulars of vehicle tracking devices installed on the
specific truck tankers, locations of those tankers at different times, and the Global
Positioning System (GPS) co-ordinates. More about these later.
[17] The following background, distilled from Mr Peach’s evidence, is
necessary to appreciate the nature of the Quarry Hoek counts. At the time Sasol
was importing petrol, described in the charge sheet as Ron65 petrol or Reformate
petrol (the two are synonymous), and it was then transported by fuel tankers from
IVS in Durban to its tank farm in Secunda, where it was further processed. The
quantities imported were so great – more than 50 tankers a day – that they
followed a different route into the tank farm in Secunda in accordance with the
procedure described below. Four freight entities were used for that purpose,
namely Lobtrans SA (Pty) Ltd (Lobtrans); Freight Dynamics (Pty) Ltd (Freight
Dynamics); Wardens Cartage CC (Wardens) and 777 Logistics (Pty) Ltd
(Logistics). Appellants 3, 4, 6, 8 and 9 were among the drivers of the tankers for
these companies.
[18] The following procedure had to be followed for the loading of the
petroleum products from IVS Durban up to their off-loading in Secunda. The Oil
Unit at Sasol’s headquarters in Rosebank would generate an order, prefixed with
number 53. The various transport companies operating the tankers would be
given the orders, which entitled those companies to uplift the product referred to

in the order from IVS. The transport company would issue the driver with a
delivery note with details of the driver and the registration numbers of the tanker
and the trailer (if any). At IVS the driver would exhibit the documents in his
possession, load and proceed to the weighbridge to weigh the load.
[19] An independent company, Intertek Testing Services (South Africa) (Pty)
Ltd (Intertek), inspected the vehicles as they arrived at IVS. After loading, the
tanker would be inspected and sealed. The seals would have sequential numbers.
Each driver would sign the weighbridge ticket, and an acknowledgment that they
had received the product. These two documents would have to be handed in upon
arrival at the Sasol tank farm in Secunda. The tanker would then be weighed to
check that the weight corresponded with the weight shown on the IVS documents
within a tolerance of 500kgs. Once so satisfied, the process controller at the
weighbridge would generate a ‘non-commercial goods’ receipt and allow the
tanker to proceed to off-loading. There the product would be tested for possible
contamination and the off-loading official would generate an off-loading
statement essentially certifying that the tanker had not been tampered with, was
full of product and ready for off-loading. After the tanker had off-loaded the
product the off-loading official would make a declaration of the time when off-
loading was complete and that the tanker had been fully off-loaded. The tanker
would then proceed outbound to the weighbridge where it would be weighed
again and the ‘non-commercial goods’ receipt would be completed. It would then
be allowed to leave the tank farm and its departure time would be logged by the
security personnel at the exit gate. Thus, for theft of the product to occur under
this procedure, the driver of the tanker, the weighbridge official, the off-loading
official and the buyer of the stolen product, and possibly the security officer, all
had to co-operate.

[20] In respect of the specific counts relating to Quarry Hoek, the catalyst was
the events of 14 December 2006, which form the basis of count 12. Appellant 3,
Mr Tshabalala, was literally caught ‘red-handed’. On 13 December 2006 he
loaded a Freight Dynamics tanker with reformate octane at IVS in Durban. When
he arrived at the Secunda tank farm, it was discovered that the tanker was full of
water. He could not provide any satisfactory explanation as to how this came
about, and was arrested. An examination of the vehicle's satellite tracking report
later revealed that the tanker, on its way from Durban, had entered Quarry Hoek
at midnight on 14 December 2006 and left at 05h00. In this regard, Mr Marius
Seaman testified that as a result of this incident, he used the tanker’s vehicle
tracking reports to trace the movements of the tanker on its journey from Durban.
This showed that the tanker stopped in Warden and spent about six hours there.
As a result, he and the late Mr Peter Dafel travelled to Warden, where the GPS
co-ordinates from the replay led them straight to Quarry Hoek.
[21] The police later obtained a search and seizure warrant in respect of Quarry
Hoek, which they visited on 15 December 2006. Mr Tiry was not present. Upon
arrival, the police found fuel, reformate octane 95. Samples of it were lifted and
sent for forensic analysis, which confirmed that this was the same product which
Mr Tshabalala had loaded from IVS in Durban on 13 December 2006, destined
for Secunda. By this time Mr Tiry and Ms Sangweni had abandoned the Quarry
Hoek farm and fled. They were eventually arrested in Polokwane on 18 December
2006.
[22] The investigation triggered by the event on 14 December 2006 revealed
that between 19 August and 14 December 2006 tankers driven by appellant 3
(Mr Tshabalala), appellant 6 (Mr Buthelezi), and appellant 9 (Mr Moisi) and
others loaded product from IVS in Durban. En route to Secunda, they deviated to
Quarry Hoek, where the product was stolen. At the Secunda tank farm, all the

security processes referred to above would be reflected as having been satisfied.
This involved falsification of documents through the cooperation of the drivers,
weighbridge and off-loading officials referred to above. In this regard, the
weighbridge and off-loading officials who were charged were appellants 7
(Mr Sithole) and 8 (Mr Nkosi). In truth, however, the tanker either did not enter
the Sasol tank farm or did so empty or filled wholly or partly with water. The
satellite tracking reports revealed that the tankers had diverted to Quarry Hoek
where they spent some time. Count 25 involved a different fuel retailer,
BP Southern Africa (BP). As a result, the rest of the appellants were arrested.
Grounds of appeal
[23] The convictions were assailed on the grounds of violations of fair trial
rights based on the following:
(a)
A denial of the opportunity to cross-examine witnesses and the limitation
of an expert witness’ evidence;
(b)
Acceptance of hearsay evidence in the form of the satellite vehicle tracking
reports;
(c)
The trial judge’s conduct;
(d)
Invalidity of the search and seizure warrant in respect of Quarry Hoek.
The first two of these are closely connected and can conveniently be dealt with
together.
The satellite tracking reports
[24] An important component of the State’s case against the appellants was the
vehicle satellite tracking reports, which linked the drivers with the diversion of
their tankers to Zutundu and Quarry Hoek in all but two instances, namely counts
25 and 26, where the vehicles were observed at Quarry Hoek. The vehicle
tracking reports were highly contested, as the appellants attacked their reliability
and contended that this evidence should have been excluded as hearsay. The

State’s main witness in respect of the Quarry Hoek counts, Mr Peach, relied
heavily on the tracking reports.
[25] That evidence is summarised below. Experts from various companies
whose tracking devices had been fitted on the tankers involved in each of the
alleged thefts testified about the workings of the tracking systems.
[26] The Wardens tankers were involved in counts 13, 14, 15, 16, 17, 18, 19,
20, 21, 22, 23 and 24. They were fitted with tracking devices managed by Global
Telematics. Mr Desmond Naidoo, its fleet manager, testified about the satellite
tracking system, its workings and reliability. The GPS unit on the vehicle detects
a locational signal3 from at least three satellites circling the earth and transmits
this information to the tracking company via GMS.4 This enables the tracking
company to identify the location of the vehicle at any time to an accuracy of 10
metres. Mr Naidoo testified that the extracted information in respect of the
tankers’ movements related to these twelve counts showed that these tankers were
indeed at the Quarry Hoek farm on the dates and times indicated in the reports.
On each occasion they spent a few hours at Quarry Hoek before departing for
Secunda. In four instances the extracted information showed that from Quarry
Hoek farm, the tankers went to a truck stop in Secunda and never went to Sasol's
tank farm. In one instance a tanker arrived at the weighbridge bay, but did not go
to the off-loading bay and returned to the truck stop in Secunda.
[27] Counts 12, 34, 35, 36, 40 and 41 involved tankers belonging to Freight
Dynamics. Those tankers were fitted with Comtech5 tracking devices. Mr Joao
Pedro Pedregal, an expert in satellite tracing of motor vehicles employed by

3 Consisting of a longitude and latitude.
4  Google Mobile Services.
5 Comtech was taken over by Altech Netstar in 2008 and Mr Pedregal then worked for that company.

Altech Nestar, testified about how the satellite tracking of vehicles worked. The
only difference between his description and that of Mr Naidoo was that the
Comtech system required the GPS device on the vehicle to detect locational
signals from four satellites instead of three. All the information received from the
unit installed on a particular vehicle was sent to the client through a power track
light software program. This enabled the client to view the vehicle movements in
real time. The software also allowed the client to view trip replays so that all
position data on any trip was available. In the event of the vehicle stopping, the
program recorded the duration of the period before the next occasion the ignition
was switched on.
[28]  Mr Pedregal testified that it was impossible for the client to manipulate
any information sent by the tracking unit to the hub server and from the hub server
to the client server. Mr Pedregal also attested to the reliability and accuracy of the
system. Based on the above considerations, his conclusion was that the tankers in
these counts were at Quarry Farm on the dates and at the times reflected in the
extracts produced in respect of those tankers.
[29] Counts 30, 31, 32 and 33 involved tankers belonging to Logistics. The
tankers
were
fitted
with
tracking
devices
by
C-Track
Digital.
Mr Eugene van Niekerk attested to the accuracy and reliability of the tracking
system. He testified about movement reports in respect of the tankers involved in
the counts referred to above, during the period 26 November to 6 December 2006.
The extracted information showed that between 29 November and
4 December 2006 the four tankers involved in these counts entered Quarry Hoek
at various times en route from IVS Durban and spent a few hours there before
departing for Sasol Secunda tank farm.

[30] In respect of the Zutundu counts, the investigating officer, Captain Schutte,
obtained two compact discs from the tracking company for the vehicles involved
in these counts and they were analysed by Constable Ravat. He had plotted the
location of the four corners of the walled homestead area on Zutundu using a GPS
device and his analysis showed that all the vehicles in question in relation to those
counts had diverted to Zutundu from their intended route from Secunda to the
Engen depot at Mokopane.
[31] None of these witnesses were cross-examined, nor was their evidence
challenged. As the appellants were represented through Legal Aid SA (Legal
Aid), they had to obtain approval from Legal Aid to engage the services of
satellite tracking expert. When the State’s expert witnesses testified, counsel had
not identified a potential expert witness and that approval had not yet been given.
Consequently, counsel for the appellants elected not to cross-examine those
witnesses on the ground they needed an expert themselves in order to cross-
examine effectively.
[32] Eventually the State closed its case on 26 February 2015. The appellants’
application to recall the State’s witnesses for cross-examination was refused.
Mr Shone, the appellants’ expert, testified from 26 to 27 March 2015, while the
other expert, Mr Dormehl, delivered a report and testified on 17 and 18 February
2016. At the end of his evidence, a further application to recall the State’s expert
witnesses was refused. In the circumstances, it is not correct that the appellants’
right to cross-examine the witnesses was denied. They elected not to do so, and
allowed the State to close its case.
[33] It is no answer for the appellants to argue that they were dependent on
Legal Aid for funding. What they needed to do was identify a suitable expert and
then ask Legal Aid to provide funds to obtain a report from that expert on the

issues in the case. This they could have done immediately they received the
contents of the docket, from which it would have been clear that the satellite
tracking reports were to form the bedrock of the State’s case. They elected not to
do this, and waited until towards the closure of the State’s case. And in the light
of the evidence of their own expert witnesses, the trial court was correct in
refusing the applications to recall the witnesses.
[34] None of the appellants testified in their own defence. To counter the State’s
tracking reports evidence, the appellants relied on the evidence of Mr Shone and
Mr Dormehl. Mr Shone, a tachograph consultant, did not add any value to
determining the issue of reliability of the tracking reports, as it was not his field
of expertise. In response to a direct question on this aspect during cross-
examination, he conceded that he was unable to testify on the reliability of the
satellite tracking equipment. Furthermore, he was unable to testify as to how the
satellite tracking system worked. All he did was compare some of the documents
with a schedule prepared by Mr Peach and note some discrepancies. None of these
was relied upon in argument. In light of the above, the court a quo was correct in
attaching little value to his evidence.
[35] Mr Dormehl’s evidence was tendered in support of an application to re-
open the appellants’ cases, both to receive his evidence and to enable the
witnesses who had given evidence regarding the tracking devices and reports to
be recalled for further cross-examination. The trial court refused the application
on the basis that the evidence did not take the matter any further. The upshot of
Mr Dormehl’s evidence was that the tracking reports lacked credibility due to the
unavailability of supporting documentation like monitoring software, installation
certificates, etc; no records of regular maintenance of the devices; no proof of
how data was stored for over a period of four years. As he expressed it in his
report: ‘There is no proof that industry standards were complied with at the time

of the alleged capturing of the data now sought to be introduced by the State’. He
testified that the documents he referred to would only be called for by insurance
companies if there was a dispute over the accuracy of information obtained from
the device.
[36] Mr Dormehl, while admittedly an expert, did not address the fundamental
issue of whether these particular tracker readings accurately reflected the
movement of the vehicles in question. He raised a number of potential issues,
such as the certification of the tracking devices. He gave evidence in regard to the
way in which they could go wrong. However, none of that evidence indicated that
any of the devices in issue in this case had in fact gone wrong. Unless and until it
was put to any witness on behalf of the State that the information they were
deriving from the tracking devices was incorrect, and that the tankers in question
had not diverted from their required routes, technical evidence of how such
devices could go wrong was neither here nor there. In the absence of any proper
challenge to the correctness of that evidence the issue was academic.
[37] These substantial difficulties with Mr Dormehl’s evidence are best
illustrated by his assertion that in the absence of certain documents there was no
evidence that the GPS devices were even installed on the vehicles mentioned in
the different counts. However, no basis existed for thinking that the evidence of
tracking reports had been fabricated, which was the necessary corollary to his
view. His approach depended on the absence of certain documents he regarded
as necessary, but whose relevance he failed to demonstrate.
[38] Even if taken at face value,6 we are of the view that objective facts were
proved that served as sufficient safeguards to accept the reliability of the tracking
reports. In this regard we consider the testimony of the two s 204 witness, Messrs

Mofokeng and Mahosane, the truck drivers in respect of counts 30 and 33, to be
useful. As would become clear later, the tracking reports located their presence
at Quarry Hoek on the dates and times they testified to have been there. So the
reports were accurate as far as these two drivers were concerned. Furthermore,
Mr Seaman’s evidence is important. We have already mentioned how he was led
to Quarry Hoek with precision by the co-ordinates obtained from the replay of
the tanker movement involving appellant 3 on 14 December 2006.
[39] Furthermore, Mr Deon Pienaar, a covert surveillance operator did a
surveillance of Quarry Hoek over two days in August 2006 on behalf of Sasol.
He observed two Lobtrans tankers entering Quarry Hoek and took photographs.
Similarly, the lead to Zutundu was as a result of the satellite tracking reports. And
the fact that stolen petroleum products which had been loaded in those tankers
were found on both farms, underlines the reliability of the reports.
[40] Most importantly, if the version of appellants 3, 4, 6 and 9 had been that
they never diverted to Zutundu or Quarry Hoek, they could simply have instructed
their counsel to put that to the witnesses during cross-examination. It would have
been put that the tracking data must be incorrect because the instructions from the
accused were to the effect that the tankers had not deviated as alleged. They never
did. Furthermore, those appellants elected not to testify, which is their
constitutional right. But it is not without consequences. As is trite, the fact that an
accused person is under no obligation to testify does not mean that there are no
consequences attaching to a decision to remain silent during the trial. If there is
evidence calling for an answer, and an accused person chooses to remain silent
in the face of such evidence, a court may well be entitled to conclude that the
evidence is sufficient in the absence of an explanation to prove the guilt of the
accused. Whether such a conclusion is justified will depend on the weight of the

evidence. 7 Given all the above considerations, we conclude that the reliability of
the satellite tracking reports was established.
[41] There remains the contention that the contents of the tracking reports
constitute hearsay evidence. We do not agree. The contents of the reports merely
reflect the locational data that was transmitted from the GPS transmitter fitted to
each vehicle. That data identifies the position of the vehicle from time to time
during the journey in question. It is the product of a measuring device in the same
way that a thermometer reflects body temperature or a barometer air pressure.
The information it produces is not hearsay. It is a matter of fact and admissible as
such. That is not to say that it must be accepted at face value. One can readily
imagine circumstances in which any measuring device may be defective or
provide inaccurate information, but once it has been shown on a prima facie basis
to be doing its job properly, the absence of any basis for thinking that the
information it provides is inaccurate may mean that the correctness of that
information is established beyond reasonable doubt.
[42] One related point raised in the heads of argument, but not developed, was
that the trial judge failed to recognise that the contents of the tracking reports
constituted ‘data messages in terms of the definition in s 1 of the Electronic
Communications and Transactions Act 25 of 2002 (the ECTA). We say that this
point was not developed because we were not told why this made any difference
to their admissibility. In terms of s 15(1)(a) of the ECTA the rules of evidence
must not be used to deny the admissibility of a data message on the mere grounds
that it is constituted by a data message. In terms of s 15(2) it must be given due
evidential weight and s 15(3) prescribes certain factors to which regard must be
had in considering the message's evidential weight. We have already considered

7 Osman and Another v Attorney-General, Transvaal [1998] ZACC 14; 1998 (4) SA 1224 (CC); 1998(11) BCLR
1362 (CC); S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36; para 25.

the relevant factors and concluded that the tracking reports were reliable.
Therefore, there is nothing in this point. For those reasons the first two grounds
of appeal must fail.
The trial judge’s conduct
[43] It was submitted that the trial judge, in breach of the norms of permissible
judicial conduct, violated the appellants’ fair trial rights by unjustifiably
interrupting the appellants’ counsel throughout the trial, thus hindering their
defence. The incidents relied upon in the heads of argument primarily involved
attempts by counsel to persuade the judge that there should be a trial within a trial
on undefined issues of admissibility. On other occasions the complaint was that
their endeavours to obtain an expert witness were stultified by the judge. We have
already dealt with that and the judge did not in fact prevent them from leading the
expert evidence they procured. Their difficulties more probably stem from the
absence of any respectable evidence to contradict that led on behalf of the State.
Be that as it may, the judge was entitled, especially in view of the protracted
nature of the proceedings, which had been going on for nearly six years, to be
firm.
[44] However, there are several incidents on record which show that on a few
occasions the judge was impatient, sarcastic, overbearing, brash and downright
rude towards counsel. This is especially so in respect of Mr Nkhahle. Throughout
the record, it is evident that the judge did not think much of counsel’s abilities or
experience. This conduct was unfortunate. To his credit, Mr Nkhahle showed
remarkable resilience. Irrespective of the length of the trial, the irritations and the
inevitable frustrations, it is important for a judge to maintain a dignified and
detached disposition. Having said that, we do not think that the conduct of the
judge was so gross as to render the appellants’ trial unfair. The appellants were
afforded every opportunity to advance their defence over a protracted period.

Witnesses were cross-examined at length without it being suggested at any stage
that their evidence was erroneous, deliberately untruthful or inconsistent with a
version to be advanced by any of the accused. Taking the record as a whole, the
appellants had a fair trial.
The search and seizure warrant
[45]  The warrant, in respect of Quarry Hoek, was issued by Colonel Tsatsa on
15 December 2006. It is common cause that the warrant was issued irregularly. It
was issued to the investigating officer on his mere say so, without a statement on
oath from a person who might have reported the matter to him. No specific crime,
nor names of possible suspects, was mentioned in the warrant. What the trial court
had to determine was whether, notwithstanding the irregularities, the evidence
secured pursuant to the search fell to be excluded in terms of s 35(5) of the
Constitution. That section provides that evidence obtained in a manner that
violates any right in the Bill of Rights must be excluded if the admission of that
evidence would render the trial unfair or otherwise be detrimental to the
administration of justice. This is not an absolute exclusionary provision for
evidence obtained in violation of an accused’s constitutional rights.
[46] The next enquiry is whether the admission of the evidence would render
the trial unfair or otherwise be detrimental to the administration of justice. In Dos
Santos and Another v The State8 a warrant was defective as the regional
magistrate who issued it was not a magistrate as defined for the purposes of s 21
of the CPA. It was concluded under the circumstances, that the evidence should
not be excluded. Ponnan JA explained (at paras 23 and 24):
‘Here the investigating team did not act in flagrant disregard of the first appellant's
constitutional rights. On the contrary, they sought judicial authority for their conduct. That

8 Dos Santos and Another v The State [2010] ZASCA 73; 2010 (2) SACR 382 (SCA); [2010] 4 All SA 132 (SCA).

judicial imprimatur was an attempt to uphold the law in spirit and letter. None of those
executing the warrant knew that it suffered a defect...
In those circumstances it is plain that the task team was not attempting to garner any unfair
advantage for themselves. Rather it plainly was an endeavour to protect the interests of the first
appellant. For that they should be commended, not penalised by having the evidence that has
been secured pursuant to that warrant excluded. To exclude the evidence in those circumstances
would not conduce to a fair trial. Nor for that matter would it serve to advance the
administration of justice. To exclude the evidence simply because the wrong magistrate had
been inadvertently approached would run counter to the spirit and purport of the Constitution.
In our view, on the facts of this case s 35(5) could hardly countenance the exclusion of the
impugned evidence. Accordingly the conclusion reached by the trial court on this score cannot
be faulted.’
[47] In S v Van Deventer and Another9 the validity of a warrant issued in terms
of s 74D of Income Tax Act 58 of 1962 was attacked on the ground that it was
issued in terms of the wrong statute. The court allowed the evidence seized
pursuant thereto, after taking into consideration the following factors: that the
documents seized constituted valuable evidence of the existence and extent of
income tax evasions, and as such, the documents fell within the ambit of the
warrant; that the evidence was obtained without any compelled participation by
or conscription of appellants; that the violation of appellants’ right was technical
and not flagrant; that the officers executing the warrant acted bona fide; and that
if the evidence would in any event have been discovered by lawful means, the
exclusion thereof would generally be detrimental to administration of justice.
[48] Dos Santos and Deventer are illuminating, and the general principles
distilled from them apply with equal force to the present case. It must be borne in
mind that the search and seizure in this case yielded real and valuable evidence
of a vast network of theft of petroleum products, as well as actual products stolen

9 S v Van Deventer and Another 2012 (2) SACR 263 (WCC).

from Sasol. To exclude such evidence would be detrimental to the administration
of justice. The farm itself had been abandoned by Mr Tiry and Ms Sangweni, who
had decamped and gone into hiding. Thus, although the trial court admitted the
evidence on an incorrect basis, the decision was ultimately correct. Despite the
irregularity in issuing the warrant, the evidence obtained pursuant to its execution
was correctly accepted.
The individual charges
[49] Challenges were raised to the conviction of Ms Sangweni on all charges;
to the convictions on the theft counts of the two Sasol officials, Messrs Sithole
(Appellant 7) and Nkosi (Appellant 8) and consequently their conviction on
count 2 under POCA; to the conviction of Mr Nyamusa (Appellant 4) on counts
5, 7, 9 and 10 in relation to the Zutundu counts; and the other drivers
(Appellants 3, 6 and 9) in respect of all the theft counts on which they were
convicted and consequently their conviction on count 2 under POCA. Mr Tiry
did not advance a challenge to his conviction on any specific count as opposed to
the general challenges already disposed of. In preparing the appeal, however, it
became apparent to the members of the court that there were certain counts to
which no specific challenge had been raised where the convictions could not be
upheld. We will deal with these, which may to some extent overlap with the
individual cases raised in the heads of argument, before dealing with
Ms Sangweni's arguments and some more general issues regarding the POCA
counts.
Count 4
[50] This was one of the Zutundu charges, the general modus operandi of which
has been described. In all of them the basis for the convictions was the following.
Mr Tiry was proved to have been operating an unlawful tank farm at Zutundu, by
purchasing stolen petroleum products from tanker drivers and re-selling them at

prices less than the regulated price. There was evidence that some at least of the
stolen product had been destined for the Engen depot in Mokopane as
demonstrated by the shortfall established to exist in the latter’s tanks. On counts
4 to 11 there was evidence that tankers carrying petroleum from Secunda to the
Engen depot diverted from their prescribed route to Zutundu and remained there
for significant periods of time. In the absence of any legitimate reason for them
to do so the inference was that all or part of the contents of these tankers, was
stolen and sold to Mr Tiry. This evidence raised a prima facie case and in the
absence of any lawful explanation for the tankers going to Zutundu it was a proper
inference that the drivers and Mr Tiry were parties to the theft of all or part of the
contents of the tankers. And as already noted no innocent explanation was
forthcoming.
[51] The State’s problem in relation to count 4 is that according to
Constable Ravat the tanker in this case was only on the farm at Zutundu for
8 minutes and 50 seconds. The evidence of Mr Peach was that this would not
provide anything like sufficient time for the entire contents of the tanker, or even
a substantial portion thereof, to be discharged. The driver is not identified and
Mr Tiry’s silence in respect of this count alone is understandable. The possibility
exists that the tanker went to Zutundu dishonestly, perhaps to discuss the
possibility of stealing and selling a later consignment, but without any of its
contents being stolen. According to Mr du Preez’s schedule, the driver was a
regular driver on this route. In those circumstances, while the visit to Zutundu
was highly suspicious the evidence was insufficient to establish theft. The
convictions of Mr Tiry and Ms Sangweni on this count must be set aside.

Count 8
[52] The problem with this count, which also relates to Zutundu, is that
Constable Ravat gave no evidence in regard to it. While the tracking reports in
the record show that the vehicle visited the tank farm at Zutundu, there was no
evidence of how long it remained there. As with count 4, while the visit to
Zutundu was highly suspicious the evidence was insufficient to establish theft.
The convictions of Mr Tiry and Ms Sangweni on this count must be set aside.
The Quarry Hoek counts
[53] In respect of the Quarry Hoek counts, as already stated, the State relied on
the evidence of Mr Peach. It is necessary to preface the analysis of his evidence
with the following observation. His was not direct evidence, but involved an
analysis of tracking records against the consignment documents and the drawing
of conclusions from those documents. The drawing of those conclusions was a
matter for the court, not Mr Peach.10 He started from a premise that any tanker
driver who visited Quarry Hoek was a thief who stole the consignment of fuel
they were transporting. In doing so he failed to have regard to any other
possibilities. Also, in some respects his evidence was not supported by the
documents to which he referred.
[54] The key to Mr Peach’s conclusions was the tracking reports. Given the
nature and modus operandi of Mr Tiry, where the tracking reports demonstrated
that a fully-laden vehicle en route to Secunda diverted and went to Quarry Farm,
it was a legitimate inference that it did so for the purpose of selling the cargo to
Mr Tiry. That sufficed to call for an explanation for the diversion other than theft
of the product and, in the absence of an innocent explanation, the prima facie
inference might harden into proof beyond reasonable doubt. However, it was only

10 PriceWaterhouseCoopers Inc v National Potato Cooperative and Another [2015] ZASCA 2; [2015] 2 All SA
403 (SCA) paras 78-95.

where the tracking reports provided the necessary support that this would be the
case. For that reason, the evidence on counts 19, 20, 22, 23, 25, 30, 33, 34, 35 and
37 requires closer scrutiny.
Count 19
[55] In count 19 the driver was Mr Buthelezi (Appellant 6). The State’s case
was that on 13 October 2006, having uplifted petroleum product from IVS in
Durban, and while en route to Secunda tank farm, he deviated to Quarry Hoek
and decanted the product there, before proceeding. At Secunda documents were
falsified to create an impression that the product was off-loaded there, whereas,
this was not true.
[56] According to the IVS weighbridge ticket, the tanker left IVS in Durban at
01h50 am on 13 October 2006. Mr Peach said that Sasol’s security documents
showed that it arrived at the tank farm at Secunda at 19h36 on 13 October 2006
and according to the offloading statement had been fully offloaded by 20h00.
However, the goods receipt reflected that the tanker left the tank farm at 21h05.
According to Mr Peach, it was impossible for the tanker to have been fully off-
loaded by 20h00 if it arrived at 19h36. In cross-examination it was suggested to
Mr Peach that the offloading statement, which should have been completed at the
beginning of the offloading operation and the declaration, which should have
been completed at the end of the offloading operation, were frequently completed
at the same time. Whilst he rejected the suggestion it does not strike us as
implausible.
[57] Apart from the off-loading statement the remaining documents were not
inconsistent with delivery of the product at Secunda. The other entries were
correct, including the seal numbers on the offloading statement, according to the
IVS documents. The only exception was the discharge declaration reflecting that

the off-loading took only less than half an hour. That was the high water mark of
the State’s case. However, if one accepts the possibility that the tanker left the
tank farm at 21h06, this would have given sufficient time to discharge the entire
consignment. It is therefore plausible that the high-pressure official recorded the
time incorrectly in the discharge declaration. Another consideration is that if there
was theft of the product, Mr Peter Mbatha and the official who prepared the
declaration, one Moses, would have been charged. They were not. Mr Peach’s
evidence was that for theft of consignments to the Sasol Secunda tank farm to
take place, the cooperation of the weigh-in and off-loading officials was
necessary.
[58] What is more, the allegation that the tanker driven by Mr Buthelelzi was at
Quarry Hoek en route to Secunda, was not supported by the tracking records he
relied on. They showed the tanker leaving Secunda at about midnight on
12 October 2006 and arriving at Quarry Hoek at 02h40. It remained there until
02h56, before travelling to a spot southwest of Warden on the R714. It was shown
as leaving there at about 06h30 and the next relevant entry shows it at the IVS
premises in Durban at 22h14 on Thursday 12 October 2006. That is consistent
with the IVS loading documents for the vehicle's departure from Durban, but it
had no relevance to that journey.
[59] From the tracking reports, it is apparent that the trip Mr Peach relied on,
was an in-bound trip from Secunda to Durban on Thursday 12 October and not a
trip from Durban to Secunda on Friday 13 October 2006. The next document in
the record related to another return journey from Secunda leaving there on the
evening of 13 October 2006. Once again it tracked the return journey of the tanker
travelling generally south and east from Standerton to Harrismith with a half an
hour stop, possibly at Quarry Hoek, before continuing to Harrismith. This did not
reflect the journey from Durban to Secunda and accordingly did not prove that

the tanker entered Quarry Hoek on its way from Durban to Secunda. The tracking
reports which formed the basis of Mr Peach’s testimony do not relate to the
critical period, being from the early hours of the morning on 13 October until
14 October 2006. Mr Peach’s conclusion that the tracking reports showed that the
tanker was on the farm Quarry Hoek en route Durban to Secunda cannot possibly
be correct. Both visits to Quarry Hoek reflected on the tracking records were on
return journeys from Secunda to Durban.
[60] We have no idea why Mr Buthelezi went to Quarry Hoek on these
occasions. All we know is that on 13 October he was shown as discharging
product at Secunda. One can only speculate about the purpose of his stop-over at
Quarry Hoek on his journeys back to Durban from Secunda. The charge of theft
was not proved and both he and Mr Tiry and Ms Sangweni should have been
acquitted on this count.
Counts 20, 22 and 23
[61] In count 20 Mr Mthetwa, formerly appellant 5, loaded a consignment of
unleaded petrol from IVS in Durban and set out on a journey to Sasol Secunda
on 23 October 2006 at 04h04. The goods receipt completed by a dispatch
controller mentioned that the tanker arrived at the tank farm on 24 October 2006
at 03h17 and departed at 04h49. The off-loading statement at Sasol tank farm
stated that the product was off-loaded on 24 October 2006 at 03h40. A declaration
was made that at 03h40 the tanker had been fully off-loaded and could leave the
premises empty.
[62] According to Mr Peach, the tanker visited Quarry Hoek on 23 and
24 October 2006. He based his conclusion on a tracking report. That report was
not particularly helpful. It did not have particulars of the entire journey and did
not identify any particular location. The entry that Mr Peach relied on showed

that the tanker was stationary on 23 October 2006 from 21h54 and resumed its
journey the following morning at 00h22. It is not clear on what basis Mr Peach
concluded that the place where the tanker had stopped was Quarry Hoek. The
report contained no co-ordinates that would identify the spot. He criticised the
times shown on the off-loading report in Secunda saying that it was impossible
to discharge a full cargo in the time available, but made no allowance for human
error. In our view the evidence fell short of sustaining a conviction.
[63] The same difficulties exist in regard to the tracking reports for count 22,
which involved Mr Sithole (Appellant 7) and the original accused 8 who died in
the course of the trial, and count 23, involving a driver and tank farm officials not
charged, where similar set of facts obtained. Unless it could be shown that the
tanker had been to Quarry Farm it could not be inferred that its cargo had been
stolen there or that the documents prepared by Mr Sithole were designed to
conceal the theft. Accordingly, on these three counts Mr Tiry and Ms Sangweni
should have been acquitted, and on count 22 Mr Sithole should have been
acquitted.
Count 25
[64] Count 25 involved a Lobtrans tanker engaged by BP South Africa to
transport low sulphur diesel from IVS Durban to its depot in Waltloo, Pretoria on
14 October 2006. The driver was Mr Joseph Ramogale, who was not charged.
According to Mr Peach, the tanker left IVS in Durban and en route entered Quarry
Farm at 17h37 and departed at 17h57. There are two difficulties with this count.
First, it is doubtful that any theft of fuel could have been completed in just less
than 20 minutes that the tanker had stopped there. In any event, there is no
evidence that the tanker arrived without its cargo or with a contaminated product
at Waltloo, Pretoria. In fact, there are no delivery documents at all and no
evidence of documents being falsified upon arrival of the tanker at its destination.

The prosecutor put it to Mr Peach that the documents were administrative and
‘would not implicate any of the accused before court’ and Mr Peach agreed. The
court asked Mr Peach whether he knew of the procedures followed by Lobtrans.
His answer was that he was not familiar with its procedures. For all these reasons
the convictions of Mr Tiry and Ms Sangweni on this count are not sustainable,
and should be set aside.

Count 30
[65] In count 30 the driver was Mr Frans Mofokeng, a witness warned in terms
of s 204 of the CPA. He loaded a 777 Logistics (Pty) Ltd tanker at IVS Durban
and set out to Secunda on 28 November 2006. Mr Mofokeng testified that he had
heard about Mr Tiry buying petroleum products from drivers. This, according to
him, was common knowledge amongst the drivers. Someone had told him that
R70 000 would be paid for the product in his tanker. He therefore diverted to
Quarry Hoek on 28 November 2006 en route to Secunda, intending to sell his
consignment to Mr Tiry. However, he found a significant queue, and was
prevented from speaking to Mr Tiry in person. Anyway, he said, it would take
too long to decant his load. As he could not wait that long, he left without doing
so. Mr Mofokeng’s evidence of the tanker’s presence at Quarry Hoek is
corroborated by the tracking reports, which show that the tanker arrived there at
23h42 on 28 November 2006 and made start stop movements at a very slow pace
until 5h50 on 29 November 2006 when it left.
[66] No inference that petrol was in fact stolen, can be drawn in this instance,
as there is a plausible explanation by Mr Mofokeng as to why he eventually left
without decanting his consignment. Given that the court a quo accepted his
evidence, it must a fortiori be accepted that no petrol was stolen at Quarry Hoek.
Accordingly, the convictions against Mr Tiry and Ms Sangweni must be set aside.

Count 33
[67] This count also involved a witness warned in terms of s 204, Mr Eric
Mahosane. He loaded a Logistics tanker with reformat at IVS in Durban on
4 December 2006. He diverted to Quarry Hoek with the intention of selling his
consignment to Mr Tiry, whom he had never met before, but had spoken to
telephonically. He testified that when he was about to discharge his tanker the
pumps stop working. They could not be fixed, and a second pump would also not
work. In the result no petrol was in fact stolen. The tracking report showed that
the tanker entered Quarry Hoek on 4 December 2006 at 23h27 and left the
following morning at 03h51.The State conceded that because there was no petrol
stolen, the conviction on this count should be altered to one of attempted theft.
Count 34
[68] The driver in count 34 was Mr Tshabalala (Appellant 3). Mr Peach testified
that the tanker loaded product at IVS in Durban, proceeded to Sasol in Secunda
and on its return entered the farm Quarry Hoek for a period of a little over one
hour. The convictions are not supported by the documentation – the IVS
weighbridge ticket and Sasol’s non-commercial goods receipt. The former shows
that the tanker loaded reformate on 23 November 2006 at IVS and left at 12h38.
Sasol’s goods receipt shows that the tanker arrived at the tank farm in Secunda at
09h00 on 24 November 2006 and left at 11h26 the same day. Although there are
discrepancies in all the weights shown on that document, nothing really turns on
this as they fell within the allowable 500-kilogram tolerance. The tanker’s
movements described above are consistent with the tanker having been driven
directly from Durban.
[69] The tracking reports are of no assistance in this regard. The first one
reflects the tanker at Secunda on 22 November 2006, the day before it left Durban
on the journey in question. It appears to relate to a return trip from Secunda to

Durban arriving at about 16h06 on that day. The second report, dated
24 November 2006, is also a return journey. It shows the tanker being stationary,
or travelling a minimal distance, between 10h24 and 11h47 on that day,
presumably in Secunda. It then travelled 180 kilometres, which corresponds with
the distance between Secunda and Warden. The plot in the record shows it in the
middle of Warden, presumably at the truck stop and then leaving the town and
travelling northward. Eventually, it ended at Quarry Hoek at 20h00 and left an
hour later.
[70] The inference that the State asked the court to draw in respect of the Quarry
Hoek counts should be borne in mind. It was that loaded tankers en route from
Durban to Secunda, which diverted to Quarry Hoek before resuming their
journeys to Secunda, must have decanted their loads into the tanks at Quarry Hoek
and replaced them with water or some other substance to deceive the officials at
Sasol. Indeed, where it was established that a tanker entered Quarry Hoek en route
to Secunda from Durban, that inference could legitimately be drawn, calling for
a rebuttal. However, a similar inference cannot legitimately be drawn in respect
of a reverse trip, ie a diversion to Quarry Hoek on a trip from Secunda to Durban.
[71] To draw a legitimate inference would require the tanker to enter and leave
Sasol without offloading at all. The State’s case, it must be remembered, was that
the drivers had developed a method to disguise the fact that the petroleum or
diesel had been stolen on the way to Sasol. Given that fact, it is hard to think of a
reason why a driver would depart from that practice, complete his journey, obtain
fraudulent documents and then return to perpetrate the theft. For these reasons,
the convictions of Mr Tiry, Ms Sangweni and Mr Tshabalala on this count must
be set aside.

Count 35
[72] Count 35 involved Mr Tshabalala (Appellant 3) as the driver and
Mr Sithole (Appellant 7) as the Sasol official who signed a receipt for the goods.
The IVS dispatch note shows that Mr Tshabalala left Durban on
25 November 2006 at 04h35. This was shortly after his return from the journey
in relation to count 34. Mr Peach’s conclusion from the documentation was that
the vehicle entered Quarry Hoek at about 20h00 on the evening of
25 November 2006 and left at approximately at 21h08. This was based on two
tracking reports. However, those tracking reports are dated 24 November 2006,
which is the previous day and a comparison with the similar reports in count 34
reveals them to be the same documents. The tracking report for
25 November 2006 does not show a significant stop in or around Warden at any
time on 25 November 2006. In fact, those reports do not reflect the tanker going
beyond Standerton. There are no offloading reports at Secunda, but the goods
receipt reflects the tanker as having arrived at the Sasol tank farm at 6h00 on
Sunday 26 November 2006 and left at 8h17 the same day. That would be
consistent with the vehicle having spent some time in Standerton, before
travelling on to Secunda. The court a quo’s conclusion that the tanker entered
Quarry Hoek on 25 November 2006 and never entered the Sasol tank farm is not
sustained by the evidence. The convictions of Mr Tiry, Ms Sangweni,
Mr Tshabalala and Mr Sithole must similarly be set aside.
Counts 42, 43 and 45
[73] Mr Tiry and Ms Sangweni were discharged on counts 27, 28 and 29 at the
close of the State case in terms of s 174 of the Criminal Procedure Act 51 of 1977.
On counts 42, and 43 the only evidence against them consisted of two
unexplained documents that were presumably found when Mr Tiry’s premises
were searched. No evidence was led to explain where they were found; what they
were about; or why they were connected to Mr Tiry. On their face they referred

to sales of petrol and paraffin, the latter a commodity in respect of which there
was no evidence whatsoever of theft. The trial court did not mention them in its
judgment or furnish any reasons for holding that they provided evidence of theft
on the part of Mr Tiry and Ms Sangweni. They were also convicted on count 45
as was Mr Buthelezi (Appellant 6), but the State accepted that it led no evidence,
on this count. The convictions on each of these counts must be set aside.
Sasol: Counts 12, 13, 14, 15, 16, 17, 18, 21, 24, 26, 31, 32, 36, 37, 38, 39, 40,
and 41
[74] Below is a summary of the evidence in respect of the rest of the counts. In
each case it sufficed to establish a prima facie case of theft involving the driver
and the relevant off-loading official at Secunda. In none was an innocent
explanation forthcoming. Accordingly, the relevant accused were properly
convicted.
[75] Count 13 involved Mr Sithole (Appellant 7). A Wardens tanker driven by
Mr Aubrey Mzimela loaded unleaded petrol at IVS Durban and left for Secunda
on 18 August 2006 at 10h12. According to the goods receipt signed by
Mr Ferguson Mbuthi as the dispatch officer, the tanker arrived at the tank farm at
01h41 on 19 August 2006. The off-loading statement completed by Mr Sithole
did not reflect the time of the off-loading. However, he signed a declaration that
the tanker had been fully off-loaded at 02h00 and could leave the premises empty.
However, the tracking records showed that the tanker entered Quarry Hoek at
22h33 on 19 August 2006 and left the following morning, 19 August 2006 at
00h36 and arrived in Secunda at 04h06. The conclusion by Mr Peach was that the
tanker was never at the off-loading bay, and must have come empty, as at the time
reflected in the discharge documents as being when the tanker was at the Sasol
tank farm, it was in fact at Quarry Hoek

[76] Count 14 involved Mr Buthelezi (Appellant 6) as the driver for a Wardens
tanker, and Mr Nkosi (Appellant 8) as the weighbridge official at Sasol tank farm
in Secunda. According to the IVS document, the consignment was loaded on
20 August 2006 and left Durban at 07h50. According to the off-loading statement
at Sasol tank farm, signed by Mr Nkosi, the tanker was off-loaded at 00h15 on
22 August 2006. Also at 00h15, he made a declaration to the effect that the
consignment had been fully off-loaded at high pressure tank farm and was
certified to leave the premises empty. However, the tracking report showed that
the tanker entered Quarry Hoek farm at 18h56 on 21 August 2006 and left at
20h40. It arrived at Secunda at 23h13 but never entered the tank farm. Instead, it
parked at a truck stop in town until 06h45 on 22 August 2006. The upshot was
that the documents certifying the tanker to have entered the tank farm were
falsified.
[77] In count 15, a Wardens tanker driven by Mr Alpheus Mabaso loaded petrol
at IVS Durban and left for Sasol Tank farm, Secunda at 20h43 on 22
August 2006. Mr Sithole was the off-loading official at Secunda. According to
the goods receipt, completed by the former accused 8, now deceased, the tanker
arrived at Secunda at 14h48 on 24 August 2006. The off-loading statement
reflected no time of the off-loading, only the date of 24 August 2006. In his
capacity as the high pressure official, Mr Sithole signed a declaration that the
tanker had fully off-loaded the consignment and could leave the tank farm at
15h00 on 24 August 2006. This was merely 12 minutes after the stated arrival
time of 14h48 stated above.
[78] The tracking reports showed that the tanker had, on 21 August 2006, en
route from Durban to Secunda, entered Quarry Hoek at 19h30 on 23 August 2006
and left at 21h35. It arrived in Secunda the next morning at 07h24 but went to the

truck stop in town, and remained there until 19h02 when it undertook another trip
to Durban. It never entered the Sasol Tank farm on its arrival in Secunda.
[79] Count 16 involved a driver and security officials who were not charged.
Mr Alpheus Mabaso, on 23 October 2006, drove a Wardens tanker from IVS
Durban, loaded with unleaded petrol and set out to Secunda tank farm. The
tracking reports showed that en route to Secunda from Durban, the tanker entered
Quarry Hoek at 19h13 and remained there for over two hours until 21h20. The
goods receipt at Secunda tank farm, signed by Mr Jack Manamela, reflected the
arrival time at Secunda tank farm as 01h26 on 24 August 2006. The off-loading
statement reflected the off-loading time as 02h10. A security officer,
Mr Mofokeng, declared that at 02h10 the tanker had been fully off-loaded and
could leave the premises empty. The goods receipt reflected that the tanker left
the tank farm at 03h17 on 24 August 2006.
[80] In count 17, a Wardens tanker driven by Mr William Ngqekethe loaded
unleaded petrol at IVS in Durban. The IVS weighbridge ticket reflects that the
tanker was sealed with seals numbered A047480 to A 047492 by Intertek. The
tanker left for Secunda at 02h58 on 23 August 2006. The goods receipt at Sasol
Secunda tank farm reflected that the tanker arrived there at 13h51 on
24 August 2006. Mr Sithole completed an off-loading statement in which he,
among others, confirmed that the tanker seal numbers corresponded with the seal
numbers as sealed by Intertek at IVS. In his capacity as the high pressure official,
he also signed the declaration that the tanker had been fully off-loaded at 15h00
on 25 August 2006 and was ready to leave the premises empty.
[81] The tracking reports showed that the tanker, en route from Durban, entered
Quarry Hoek at 21h59 on 24 August 2006 and left the following morning,

25 August 2006, at 03h59. The report further showed that the tanker drove to
Secunda, but never entered the tank farm.
[82] On this count, Mr Peach also testified about a seal with number A047481
he discovered at Quarry Hoek on 27 November 2007. On that occasion he had
accompanied the investigation officer to the farm to load product for testing. He
concluded that the seal was part of the seals used by Intertek when the tanker left
loaded at IVS in Durban. His conclusion was therefore that the off-loading
statement that the tank number corresponded with the seal numbers as sealed by
Intertek at IVS, could not be true and was falsified.
[83] Count 18 also involved a driver and security officials who were not
charged. Mr Branty Ntuli drove a Wardens tanker on 26 August 2006, loaded
with unleaded petrol, from IVS in Durban and set out to Secunda tank farm at
18h40. The goods receipt completed by dispatch controller, Mr Peter Mbatha,
showed that the tanker arrived at the tank farm at 10h52 on 27 August 2006. The
off-loading statement completed by Mr TA Letebele reflected the off-loading
time as 12h35. The same time is reflected as the time when the tanker was
declared fully off-loaded and ready to leave the tank farm empty. The goods
receipt reflected that the tanker left the tank farm at 14h24, without any
explanation for it remaining there for two hours after discharge was complete.
The tracking reports showed that the tanker entered Quarry Hoek on its way to
Secunda at 03h24 and left at 04h04. From there it ended at Roberts Drift near
Meyerville. It never entered the tank farm at Secunda.
[84] Count 21 involved the deceased appellant 5 as the driver of a Wardens’
tanker which, on 25 October 2006 at 07h56 left IVS Durban after loading petrol,
destined for Sasol Secunda tank farm. According to security documents
completed at the tank farm, the tanker arrived on 26 October 2006 at 03h01 and

was fully off-loaded by 03h30, which according to Mr Peach, was ‘impossible’.
To fully off-load a tanker, he explained, normally took over an hour. The tracking
report showed that the tanker entered Quarry Hoek en route to Secunda on
25 October 2006 at 21h21 and left at 00h09 the morning of 26 October 2006.
[85] Count 31 involved Mr Nkosi (Appellant 8) and Mr Moisi (Appellant 9).
The latter was a driver for Logistics. On 28 November 2006 he loaded reformate
(octane 95) from IVS Durban. The goods receipt at Sasol tank farm in Secunda
completed by the dispatch controller, showed that the tanker arrived at 06h40 on
29 November 2006. The off-loading statement was completed by Mr Nkosi, who
to the effect that the truck was fully off-loaded at 06h50. A Mr Letebele declared
that the tanker was cleared to leave the premises empty, at the same time, ie
06h50. The tracking reports showed that the tanker entered Quarry Hoek at 00h12
on 29 November 2006 and left at 03h50. Appellant 8 (Mr Nkosi) was the high
pressure official.
[86] Messrs Nkosi and Moisi was also involved in count 32. He loaded
reformate octane from IVS in Durban on 30 November 2006 and left for Secunda
tank farm at 14h38. The goods receipt reflected the tanker’s arrival time as 06h51
the following morning. The off-loading statement completed by Mr Nkosi
reflected the off-loading time as 07h00 on 1 December 2006. The time on the
declaration is reflected as ‘07h’, ie no indication as to how long after 07h00. The
goods receipt reflected that the tanker left the tank farm at 08h18. The tracking
report showed that en route to Secunda the tanker diverted to Quarry Hoek on
1 December 2006 at 00h21and left at 03h48.
[87] Count 36 involved appellants 3 and 7. Mr Buthelezi loaded a Freight
Dynamic tanker with reformate at IVS Durban on 3 December 2006. The bulk
tank inspection was conducted by Intertek, which sealed the tanker with ten seals,

with numbers from 089660 to 089669. The tanker left for Secunda at 23h55 on
3 November 2006. The goods receipt, signed by appellant 3 and a dispatch
controller, reflected the arrival time at Secunda tank farm as 18h27 on
4 December 2006. The off-loading statement does not state the off-loading time.
[88] However, among other things, Mr Sithole, as the off-loading officer,
certified he had compared the tanker number and seal numbers with those
recorded at IVS. A security officer declared that at 17h45 the tanker had been
fully off-loaded and could leave the premises empty. The goods receipt reflected
that the tanker left the tank farm at 18h27 on 4 December 2006. Mr Peach testified
that he visited Quarry Hoek on 30 July 2007 when samples of petroleum products
found there, were to be obtained for analysis. While there, he discovered an
Intertek seal with number A089662.
[89] Mr Peach concluded from this discovery that the tanker driven by
Mr Buthelezi referred to earlier, was at Quarry Farm. According to Mr Peach, the
statement by Mr Sithole that the seals were intact when the tanker was inspected
on 4 December 2006, was false. Mr Peach further testified that no seals would
ever have the same number. This was confirmed by Mr Eiston Naidoo, a
coordinator at Intertek, who positively identified the seal as the one allocated by
Intertek to the tanker.
[90] In count 37 Mr Tshabalala was again the driver of a Freight Dynamic
tanker, destined for Sasol tank farm, Secunda on 5 December 2006. The goods
receipt at Sasol stated that the tanker arrived at 04h39 on 6 December 2006. The
off-loading statement by Mr Sithole (Appellant 7) reflected no time, but the
off-loading declaration recorded that the tanker had been fully off-loaded at
04h50, that is, 11 minutes later, which was impossible. The goods receipt
reflected that the tanker left the weighbridge at 05h42, but so did the security gate

checkout, which was two kilometres further away. However, the tracking report
showed that the tanker was at Quarry Hoek at 23h10 on 5 December 2006 and
left the following morning at 01h38. Mr Peach concluded from this that the
documents had been falsified. The unexplained diversion for a significant period
of time to Quarry Hoek, when taken in conjunction with the difficulties with the
documents relating to the discharge process, was sufficient to make a prima facie
case of theft of product and it being covered up by the falsification of documents.
Yet neither appellant 3 nor appellant 7 gave evidence to provide an innocent
explanation.
[91] Although this count involved appellants 3 and 7, as driver and off-loading
official respectively, for some reason, there is no verdict on this count in respect
of appellant 3. This is despite the fact that the court a quo dealt with this count in
its judgment. However, Mr Sithole, who would have falsified the official
documentation at the Sasol Secunda tank farm, was convicted of the count. One
can only attribute the omission to inadvertence on the part of the learned judge.
That is perhaps fortunate for Mr Tshabalala, but it is not a reason to disturb the
conviction of Mr Sithole, or those of Mr Tiry and Ms Sangweni.
[92] In count 38 a tanker driven by Mr Tshabalala left IVS in Durban shortly
before 09h00 on 7 December 2006. The tracking report showed that at
approximately 20h00 on 7 December 2006 it passed Warden and continued on
the road before doubling back to Quarry Hoek. There is no indication as to how
long it remained there or what time it left. Despite Mr Peach baldly testifying that
the tanker was on the farm for three hours, that was not supported by the
documents. However, the tracking report for 8 December 2006 shows the vehicle
underway shortly after midnight, having travelled 11 kilometres and slightly
north of Warden. It then travelled 175.67 kms which is consistent with the
distance between Warden and Secunda. It is shown on the security gate reports

as arriving at 03h14 and leaving at 04h21. The off-loading certificate said that it
was completely off-loaded by 03h37, which was impossible. There was sufficient
evidence to raise a prima facie case calling for an answer, but none was
forthcoming.
[93] In count 39, a Freight Dynamics tanker driven by Mr Bongane Dlamini
loaded reformate at IVS in Durban. The IVS weighbridge ticket reflects that
Intertek sealed the tanker with seal numbers from 083448 to 083455 (bottom
seals) and 083440 to 083447 (top seals). The tanker left for Secunda at 14h52 on
6 December 2006. The goods receipt at Sasol Secunda tank farm reflected that
the tanker arrived there at 08h35 on 7 December 2006.
[94] An off-loading statement completed by Mr RZ Maseko confirmed, among
others, that the tanker’s seal number corresponded with the seal numbers as sealed
by Intertek at IVS. Also, in his capacity as the high pressure official, Mr Maseko,
signed the declaration that the tanker had been fully off-loaded at 08h55 on
7 December 2006 and was ready to leave the premises empty.
[95] There were no tracking reports in this instance. However, Mr Peach
testified that on 27 November 2007, among the seals he picked up at Quarry
Hoek, was one with number 083446. His conclusion was that this seal was one of
the seals utilized by Intertek to seal the tanker on 6 December 2006 as stated
above. As in count 36, this was confirmed by Mr Eiston Naidoo. By parity of
reasoning, Mr Peach concluded that the statement by Mr Maseko that he
inspected the seal at the tank farm on 7 December 2006 could not be correct as
the seal had clearly been broken and left at Quarry Hoek. The upshot of his
evidence was that the tanker, en route from Durban to Secunda, entered Quarry
Hoek where the consignment was stolen.

[96] Count 40 involved Mr Sithole as the weighbridge official at the Secunda
tank farm. A Freight Dynamics tanker, driven by the same Mr Dlamini as in count
39, loaded reformate at IVS in Durban and left for Secunda tank farm at 01h21
on 8 December 2006. The goods receipt reflected the tanker’s arrival time as
02h03 on 10 December 2006. The off-loading statement completed by appellant
7, reflected the off-loading date only (10 December 2006) but no time. The time
on the declaration is reflected as 02h15. The tracking report showed that en route
to Secunda the tanker entered Quarry Hoek on 9 December 2006 at 10h09 and
left at 17h30.
[97] Count 41 also involved appellant 3 as driver and appellant 7 as a
weighbridge official at Secunda tank farm. Appellant 3 loaded a Freight
Dynamics tanker with reformate at IVS in Durban on 9 December 2006. The
goods receipt at Sasol tank farm in Secunda signed by appellant 3 and a dispatch
controller, Mr Ferguson Mbuti, shows that the tanker arrived at 22h54 on
10 December 2006.  In the off-loading statement, appellant 3 only recorded the
date, but no time. He further completed the declaration that the truck was fully
off-loaded and cleared to leave the premises empty, at 23h00 on 10 December
2006. The tracking reports showed that en route from Durban to Secunda, the
tanker entered Quarry Hoek at 14h38 on 10 December 2006 and left at 19h00,
after which it left for Secunda.
[98] The upshot of this evidence is that on all these counts the State established
that appellants 3, 6 and 9 diverted from their established route to Quarry Hoek.
Given the proven activities of Mr Tiry and the evidence of losses and
contaminated reformat arriving in Secunda this served to establish a very strong
prima facie case of theft of product, which called for a rebuttal. In the absence of
any rebuttal, the court a quo was correct to accept the State’s evidence.

Zetundu: Counts 3, 5, 6, 7, 9, 10, 11 and 44
[99] The evidence in regard to these counts has been described in some detail
in paragraphs 11 to 13 and it need not be repeated. Mr Tiry was operating an
illegal tank farm on the farm Zetundu and in the case of all counts save count 44
there was evidence from vehicle tracking devices of vehicles diverting from their
authorised routes to the Engen depot in Mokopane and visiting the Zetundu
property for sufficient lengths of time to discharge their cargoes. This called for
an answer but none was forthcoming.
[100] Count 44 arose from the evidence of Mr du Plooy, at the time the co-owner
of F M Marketing, who over the period from April 2005 to February 2006
purchased diesel from Mr Tiry for a little over R385 000. Taking into account the
value of the diesel stolen from Engen that probably amounted to somewhere
between 70 and 80 000 litres of diesel. Mr Tiry had no licence to trade as a
wholesaler of diesel and no legitimate source of such diesel. The inference is that
it was stolen and that was reinforced by Mr du Plooy’s evidence that he purchased
it at below the regulated price. In the result there was sufficient evidence calling
for an answer and not receiving one to justify the convictions on this count.
Summary on theft counts
[101] In sum, in respect of both Zutundu and Quarry Hoek counts, the evidence
that Mr Tiry was operating an unlawful enterprise, purchasing petroleum products
from tanker drivers, for resale at discounted rates using the two farms Zutundu
and Quarry Hoek as his bases, was overwhelming. The evidence of losses of
petroleum products by Engen and Sasol was likewise substantial. Given those
factors, the drivers (appellant 4 in respect of Zutundu and appellants 3, 6 and 9 in
respect of Quarry Hoek) needed to give an innocent explanation for the diversion
from their established routes to the respective farms if an inference was not to be
drawn that they went there and sold the whole or part of their loads. As far as

appellants 7 and 8 are concerned, similarly they needed to explain the clearly
falsified security documents at the Sasol tank farm in Secunda. In the case of
Mr Tiry he needed to give an explanation for the tankers visiting the two farms.
No such explanation was proffered in cross-examination and none of the
appellants testified. The court a quo was thus correct to accept the State’s case.
Ms Sangweni
[102] As far as Ms Sangweni is concerned, it is so that there is no evidence of
her direct involvement with the buying and selling of petroleum products or the
physical operation of any of the two farms. However, her association with
Mr Tiry’s activities was clearly established. They were apparently in an intimate
relationship and lived together at Zutundu and Quarry Hoek. The nature of the
business being carried on there would have been immediately apparent to her,
surrounded as she was by a fully equipped tank farm in each place. She would
have known that tankers would arrive at the properties at all times of day or night
and discharge their cargoes. She cannot have believed that such clandestine
activities were lawful.
[103] As to her involvement, bank accounts used by the enterprise were opened
in her name, or that of a close corporation, PDN Investments CC, of which she
was the sole member. The motor vehicles were registered in the name of the close
corporation. The keys to one of the vehicles, a Range Rover that had been
abandoned at a shopping centre in Pretoria, were found in a briefcase in the room
where she was arrested together with a large sum of money in cash. The municipal
account at Zutundu was in her name, and so was the post box used at Quarry
Hoek. Mr Dos Santos’ evidence was that on certain occasions she collected the
monies for the sales in the Polokwane area. Both she and Mr Tiry deposited
amounts in part payment for the acquisition of Quarry Hoek. When Mr Tiry fled
from Quarry Hoek after his activities were exposed on 14 December 2006, she

accompanied him to Monument Park in Pretoria. When Mr Tiry got wind that the
police were closing in on him, Ms Sangweni fled with him and went into hiding
in a village in Polokwane, where they were eventually arrested. When the police
arrived and questioned her about Mr Tiry, she tried to conceal him, but he was
found hiding on the same property. A search of the property revealed sixteen
mobile phones with five batteries; deposit slips showing deposits of large sums
of money into her accounts; a number of keys and documents. Her handbag had
a substantial sum in cash in it.
[104] On these considerations, she must have been aware of the nature of the
business being conducted there. She could not explain the source of the money in
her handbag and the large sums of money found around the house, as well as the
multiple keys, telephones and other items. Overall there was sufficient evidence
of her association with Mr Tiry in his criminal activities. In the absence of
evidence from her explaining the extent of her knowledge and involvement it is
a proper inference that she was his associate in the unlawful scheme and
participated in it.
The POCA charges
[105] We turn now to the relevant provisions of POCA,11 namely ss 2(1)(e) and
2(1)(f), on which counts 1 and 2 are based. Section 2(1)(f), under which only
appellants 1 and 2 were charged, provides:
‘Any person who manages the operation or activities of an enterprise12 and who knows or ought
reasonably to have known that any person, whilst employed by or associated with that

11 The preamble to POCA states among its purposes as being ‘to introduce measures to combat organised crime,
money laundering and criminal gang activities; and ‘to prohibit certain activities relating to racketeering
activities.’
12 In terms of the definitions in s 1 of POCA, ‘enterprise’ ‘includes any individual, partnership, corporation,
association, or other juristic person or legal entity, and any union or group of individuals associated in fact,
although not a juristic person or legal entity and ‘pattern of racketeering activity’ means ‘the planned, ongoing,
continuous or repeated participation or involvement in any offence referred to in Schedule 1 and includes at least
two offences referred to in Schedule 1, of which one of the offences occurred after the commencement of this Act
and the last offence occurred within 10 years (excluding any

enterprise, conducts or participates in the conduct, directly or indirectly, of such enterprise’s
affairs through a pattern of racketeering activity, shall be guilty of an offence.’
Mr Tiry was convicted of count 1 but Ms Sangweni was acquitted.

[106] In addition, Mr Tiry, Ms Sangweni and the remaining appellants were each
charged with, and convicted of, an offence under s 2(1)(e), which reads:
‘Any person who, whilst managing or employed by or associated with any enterprise, conducts
or participates in the conduct, directly or indirectly, of such enterprise’s affairs through a
pattern of racketeering activity, within the Republic or elsewhere, shall be guilty of an offence.’
[107] The difference between s 2(1)(e) and s 2(1)(f) was explained as follows in
S v Eyssen:13
‘The essence of the offence in ss (e) is that the accused must conduct (or participate in the
conduct) of an enterprise’s affairs. Actual participation is required (although it may be direct
or indirect). In that respect the subsection differs from ss (f), the essence of which is the accused
must know (or ought reasonably to have known) that another person did so. Knowledge, not
participation, is required. On the other hand, ss (e) is wider than ss (f) in that ss (e) covers a
person who was managing, or employed by, or associated with the enterprise, whereas ss (f) is
limited to a person who managers the operations or activities of an enterprise . . .’
[108] As a general expression of the difference between the two sections, there
can be no quarrel with the above statement. However, when taken together with
the fact that count 1 under s 2(1)(f) was, in that case and in the present case,
preferred against the principal perpetrator or mastermind of the criminal
enterprise, whilst count 2 was levelled as a supplementary charge against both the
mastermind and the other participants, it tends to obscure the fact that s 2(1)(f) is
intended to supplement the provisions of s 2(1)(e) and to close a potential
loophole in the latter. That loophole arises because s 2(1)(e) requires of a person
managing an enterprise to conduct or participate in the conduct of such

13 S v Eyssen [2008] ZASCA 97; [2009] 1 All SA 32 (SCA); 2009 (1) SACR 406 (SCA) para 5.

enterprise’s affairs and to do so through a pattern of racketeering activity. In terms
of the definition in s 1(xii) of POCA the latter means ‘the planned, ongoing,
continuous or repeated participation or involvement in any offence referred to in
schedule 1’ of which theft is one. It must include two such offences. The word
‘planned’ qualifies all three of the other concepts, as explained at para 8 in Eyssen.
It was further observed that ‘neither unrelated instances of proscribed behaviour
nor an accidental coincidence between them constitute a “pattern” and the word
“planned” makes this clear’.
[109] There may be cases where a particular enterprise is conducted through a
pattern of racketeering activity, but the manager does not conduct or participate
in the conduct of such affairs by way of participation or involvement in the
offences constituting the racketeering activities. However, they may know, or
ought reasonably to know, that persons employed by or associated with the
enterprise are conducting or participating in the conduct of the enterprise’s affairs
through a pattern of racketeering activity. In other words, s 2(1)(f) is directed at
bringing within the net of the criminal conduct constituted by s 2(1) the manager
who removes themself from the actual conduct of the enterprise. An example of
such a case, derived from the facts of this matter, would be the position of the
owner of a number of service stations, who was unaware that the managers of the
service stations were conspiring with someone like Mr Tiry to obtain stolen petrol
for sale at the service stations. However, if as a result the sales of petrol generated
unexpectedly high profits for the volumes involved, it might be said that the
owner ought reasonably to have known of the employees’ criminal mode of
conducting the enterprise. That would attract liability under s s 2(1)(f).
[110] In simple terms, following the distinction identified in Eyssen, s 2(1)(e)
catches the manager who is involved actively in the conduct of the enterprise
through a pattern of racketeering activity, whilst s 2(1)(f) catches the manager

whose hands are clean, but who knows or ought reasonably to have known that
the enterprise was being conducted through a pattern of racketeering activity.
Knowledge of what subordinates are doing, or ignorance, where there ought
reasonably to be knowledge, suffices to attract liability.
[111] Once that distinction is recognised, it appears that charging and convicting
someone of both offences may well involve an impermissible splitting of charges,
as held in the minority judgment in S v Prinsloo and Others.14 The fact that the
State relied on precisely the same facts for both charges immediately suggests
that there was an improper splitting of charges. What is more, Mr Tiry’s active
involvement in the conduct of the enterprise brought him squarely within
s 2(1)(e). There was no need to invoke s 2(1)(f). However, his counsel did not
take this point, nor have we had argument on the question of splitting of charges.15
The majority in Prinsloo rejected a submission along these lines in paras 55 to 59
of their judgment. They said:
‘Apart from the above, we, in any event, see no reason why the legislature would have intended
to restrict the prosecution of persons under s 2(1)(f) of POCA solely to those managers who
have not dirtied their hands by personal acts of participation in the conduct of the affairs of the
enterprise. Such a construction would lead to an absurdity, where the manager of a multi-billion
rand racketeering enterprise who has had minimal personal active participation, would only be
liable for the minimal participation role under s 2(1)(e) and not under s 2(1)(f) for the extensive
managerial role played in a highly successful criminal enterprise.’
[112] With respect we have a difficulty with this reasoning. It seems to us that it
is not a case of having to choose whether liability is confined to the one or other
section, but a matter of selecting the charge that most appropriately covers the
criminal conduct in question. If the manager has ‘dirtied their hands’ extensively

14 S v Prinsloo and Others [2015] ZASCA 207; 2016 (2) SACR 25 (SCA).
15 A question posed by the Bench as to whether convictions on both the POCA counts and the theft charges
constituted an improper splitting of charges fell away once we were referred to Dos Santos v S [2010] ZASCA
731; 2010 (2) SACR 382 (SCA) and De Vries v S [2011] ZASCA 162; [2012] 1 All SA 13 (SCA).

s 2(1)(e) may be more appropriate, while if their active involvement is more
limited, but their oversight of the enterprise greater, s 2(1)(f) may fit the bill.
However, we limit ourselves to expressing those reservations because it is not
appropriate for a three-judge court to overrule a relatively recent decision by a
similarly constituted court in circumstances where the issue was not raised or
argued. Fortunately, in this case conviction on both charges affects only Mr Tiry
and the sentence to be imposed will ameliorate the problem.
[113] Apart from the submissions which we have already considered, no real
argument was advanced on behalf of Mr Tiry against his conviction. With regard
to Ms Sangweni, we have, in paragraphs 102 to 104, set out her involvement and
proximity to Mr Tiry’s criminal activities. That would justify her conviction on
the theft counts and on the contravention of s 2(1)(e) of POCA.
[114] As regards appellants 7 and 8, the security officials at the Sasol tank farm,
the inference that their participation must have been organised in advance, is
ineluctable. That being so, even if they were not employed by Mr Tiry’s criminal
enterprise, they were associated with it and participated directly in the conduct of
the enterprise's affairs through a pattern of racketeering activity. Thus, appellants
7 and 8 were properly convicted on count 2.
[115] The same cannot be said of appellants 3, 4, 6 and 9, the drivers. The
evidence of the two s 204 witnesses was that there was a general awareness
amongst drivers in the industry that Mr Tiry was willing to purchase petroleum
products being transported by them from IVS to Secunda – presumably a similar
word of mouth knowledge existed when he was operating at Zutundu. In the
absence of evidence as to the precise nature of their role in appellant’s operations,
it is difficult to accept the notion that the mere fact of their having stolen the
product in their tankers and sold it to him means that they were associated with

the enterprise and engaged indirectly in conducting its activities. It is so that the
enterprise could not have been conducted unless Mr Tiry was able to find sources
from which he could purchase stolen petrol. However, there is no evidence that
he organised a network of dishonest drivers. The nearest to such evidence is an
unidentified list of telephone numbers and a phone call to one of the s 204
witnesses. Random dishonesty by drivers does not, in our view, amount to
association with appellant’s criminal enterprise. That accords with the
observations in Eyssen (para 6) that:
‘Taking a group of individuals associated in fact, which is the relevant part of the definition for
the purposes of this appeal, it seems to me that the association would at least have to be
conscious; that there would have to be a common factor or purpose identifiable in the
association; that the association would have to be ongoing; and that the members would have
to function as a continuing unit.’
[116] There is no evidence that there was a conscious association between the
drivers and Mr Tiry or that they functioned as part of a ‘continuing unit’. In order
for them to be convicted they needed to be part of the enterprise operated by
Mr Tiry. They were not, any more than those who purchased stolen diesel and
petrol from appellant were part of his enterprise. Criminal liability under s 2(1)(e)
flows from managing, being employed by or being associated with the enterprise.
It is directed at those who are actively engaged in that enterprise on an ongoing
basis. The drivers did not fall in that category. In the result the conviction of
appellants 3, 4, 6 and 9 of count 2 should be set aside.
Sentence
[117] Finally, we turn to sentence. As stated in the introduction, Mr Tiry was
sentenced to an effective period of 30 years’ imprisonment; Ms Sangweni to an
effective 18 years’ imprisonment; and the rest of the appellants each to 15 years
imprisonment. The theft counts carried a prescribed minimum sentence of

15 years’ imprisonment in terms of s 51(2) of the Criminal Law Amendment Act
105 of 1997 (the CLLA). It was submitted on behalf of the appellants that the
sentences are excessive and unreasonably harsh.
[118] A court of appeal is not at large to interfere with the sentence imposed by
the trial court. It is only entitled to do so where there is an irregularity or material
misdirection. If the complaint is that the sentence is too severe, an appeal court
would only interfere if it considers that there is a striking disparity between the
sentence passed and that which the court of appeal would have passed.16
[119] Only appellant 9 testified in mitigation of sentence. The rest elected to
place their personal and mitigating circumstances on record from the bar. No
useful purpose would be served by reciting those in any detail. In the light of the
seriousness of the offences, and the substantial period of imprisonment prescribed
by the law in respect of the theft counts, the absence of anything exceptional in
their personal circumstances tends to render them largely immaterial in
determining what period of imprisonment should be imposed.17
[120] Mr Tiry was sentenced to an effective 30 years’ imprisonment. The
established practice is that such a sentence is usually imposed in very exceptional
circumstances.18 Whilst sentence is always individualised and bound to the facts
of a particular case, value can be gained by considering sentences imposed in
comparable cases. In this regard Prinsloo comes to mind. It involved a
multi-million rand, fraudulent Ponzi scheme, that impoverished many elderly
people and people of limited means. The mastermind behind it was sentenced to
an effective 25 years’ imprisonment. For Mr Tiry, whose conduct was neither so

16 S v Berliner 1967 (2) SA 193 (A) at 200G; S v Sadler 2000 (1) SACR 331 (SCA); [2000] 2 All SA 121 (SCA)
para 8; S v Cwele and Another [2012] ZASCA 155; 2013 (1) SACR 478 (SCA); [2012] 4 All SA 497 (SCA) para
33.
17 S v Vilakazi [2008] 4 All SA 396 (SCA); 2009 (1) SACR 552 (SCA); 2012 (6) SA 353 (SCA) para 58.
18 See S v Tuhadeleni and Others 1969 (1) SA 153 (A) at 189H and S v Whitehead 1970 (4) SA 424 (A).

widespread, nor so harmful in its consequences, we would have considered a
sentence of 20 years’ imprisonment a heavy sentence as a trial court. The disparity
between the sentence imposed by the trial court and that which we would have
imposed is therefore so substantial as to justify interference. In all the
circumstances, an effective sentence of 20 years’ imprisonment would be more
appropriate.
[121] As regards Ms Sangweni, in respect of count 2, the minimum sentence is
15 years’ imprisonment in terms of s 51(2) of the CLLA. The court a quo gave
no reasons for going beyond that in imposing 18 years’ imprisonment. We are
unable to think of any. Her involvement appears to have been limited
notwithstanding her close relationship to the principal perpetrator. To our mind,
that constitutes a substantial and compelling circumstance, justifying a lesser
sentence. Again, comparing her sentence to the one imposed on her ‘counterpart’
in Prinsloo, a sentence of 12 years’ imprisonment would have been more
appropriate. There is a startling disparity between that sentence and the one
imposed by the trial court, which justifies interference, and we would reduce it
accordingly.
[122] We have already found that the conviction of appellants 3, 4, 6 and 9 on
count 2 (racketeering) should be set aside. That must necessarily affect the
sentence. They were sentenced to 15 years’ imprisonment because they were
found to have acted in the furtherance of Mr Tiry’s criminal enterprise. Those
convictions having been set aside, their convictions are for theft simpliciter. In all
the circumstances, we consider a sentence of seven years imprisonment on each
count to be appropriate, the sentences to run concurrently.
[123] Even though the racketeering count stands, appellants 7 and 8’s
contribution is similarly limited in the overall scheme of things. They stand in the

same position as the drivers. However, as explained already, their conviction
brings the sentencing within the purview of s 51(2) of the CLAA, which enjoins
a sentencing court to impose 15 years’ imprisonment, unless substantial and
compelling circumstances are found. The truth of the matter is that Messrs Sithole
and Nkosi, like the drivers, were a ‘small fish’. They stand in stark contrast to
even Ms Sangweni, who continuously and actively abetted Mr Tiry’s criminal
enterprise in exchange for a lavish lifestyle. We have an unease about imposition
of the prescribed minimum sentence in the circumstances of the case.
[124] This court has set out the proper approach in such instances, in S v
Malgas.19 At para 22 it was explained:
‘[T]he greater the sense of unease a court feels about the imposition of a prescribed sentence,
the greater its anxiety will be that it may be perpetrating an injustice. Once a court reaches the
point where unease has hardened into a conviction that an injustice will be done, that can only
be because it is satisfied that the circumstances of the particular case render the prescribed
sentence unjust or, as some might prefer to put it, disproportionate to the crime, the criminal
and the legitimate needs of society. If that is the result of a consideration of the circumstances
the court is entitled to characterise them as substantial and compelling and such as to justify
the imposition of a lesser sentence.’
[125] And at para 25I:
‘If the sentencing court on consideration of the circumstances of the particular case is satisfied
that they render the prescribed sentence unjust in that it would be disproportionate to the crime,
the criminal and the needs of society, so that an injustice would be done by imposing that
sentence, it is entitled to impose a lesser sentence.’
This approach was endorsed by the Constitutional Court in S v Dodo.20

19 S v Malgas 2001 (2) SA 1222 (SCA); 2001 (1) SACR 469 (SCA); [2001] 3 All SA 220 (SCA) para
20 S v Dodo [2001] ZACC 16; 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC) para 40.

[126] It is with that approach in mind that we are of the view that the injustice
which would occur with the imposition of the prescribed minimum sentence of
15 years on appellants 7 and 8, constitutes a substantial and compelling
circumstance. This enables this court to impose a sentence which is deemed just
and appropriate. Taking into account all the circumstances, we are of the view
that seven years imprisonment on count 2 and each of the theft counts will serve
the purpose of sentence, be fair to society and both Messrs Sithole and Nkosi.
[127] Before we conclude, we feel constrained to record this concern.
The tracking records show that some drivers were literally driving from Durban
to Secunda, back again and almost immediately returning with a fresh load. This,
without adequate rest and breaks. It is not at all clear how legally permissible that
is. These are dangerous vehicles carrying dangerous cargoes. It is incumbent on
the owners of the freight tankers to place systems in place to ensure that drivers
take mandatory, adequate, rests and breaks before they set out on major journeys.
[128] The following order is made:
The following appeals succeed and the convictions and sentences are set
aside:
(a)
Appellants 1 and 2, Mr Tiry and Ms Sangweni, in respect of counts 4, 8,
19, 20, 22, 23, 25, 30, 34, 35, 42, 43 and 45 in their entirety, and in respect of
count 33 to the extent that the conviction of theft is altered to one of attempted
theft;
(b)
Appellant 3, Mr Tshabalala, in respect of counts 2, 34 and 35;
(c)
Appellant 4, Mr Nyamusa, in respect of count 2;
(d)
Appellant 6, Mr Buthelezi, in respect of counts 2, 19 and 45;
(e)
Appellant 7, Mr Sithole, in respect of counts 22 and 35;

(f) Appellant 9, Mr Moisi, in respect of count 2.
2 All the other appeals against conviction are dismissed and the judgment of the
high court is amended to reflect that Mr Nkosi, appellant 8, was convicted on
counts 14, 31 and 32.
Mr Tiry’s appeal against sentence succeeds to the extent reflected below:
(a)
The sentence of 30 years’ imprisonment imposed on count 1 is set aside
and substituted with a sentence of 20 years’ imprisonment;
(b)
The sentence of 20 years imprisonment on count 2 is set aside and replaced
by a sentence of 15 years imprisonment to run concurrently with the sentence on
count 1;
(c)
The sentence of 15 years imprisonment on count 33 is set aside and
replaced by a sentence of 3 years imprisonment;
(d)
It is ordered that the sentence of 15 years imprisonment imposed in respect
of each of counts 3, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21, 24, 26, 31,
32, 36, 39, 40 and 41, and the 3 years’ imprisonment on count 33, shall run
concurrently with the sentence of 20 years’ imprisonment imposed on count 1.
The effective sentence is 20 years’ imprisonment.
Ms Sangweni’s appeal against sentence succeeds to the extent set out
below:
(a)
The sentence of 18 years imprisonment imposed on count 2 is set aside and
replaced by a sentence of 12 years imprisonment;
(b)
The sentence of 15 years imprisonment on count 33 is set aside and
replaced by a sentence of 3 years imprisonment;
(c)
It is ordered that the sentence of 15 years’ imprisonment imposed in
respect of each of counts 1, 3, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21, 24,
26, 31, 32, 36, 39, 40 and 41, and the 3 years’ imprisonment on count 33, shall
run concurrently. The effective sentence is 15 years’ imprisonment;
The appeals against sentence by appellants 3, 4, 6, 7, 8 and 9 succeed. Their
existing sentences on each count on which their convictions were upheld are set

aside and replaced by sentences of 7 years imprisonment on each count, all such
sentences to run concurrently. The effective sentence in each case is 7 years
imprisonment.
In terms of s 282 of the Criminal Procedure Act 51 of 1977 the substituted
sentences are antedated to 13 October 2016, being the date on which the
appellants were sentenced.

____________________
M J D Wallis
Judge of Appeal

____________________
T M Makgoka
Judge of Appeal

APPEARANCES:
For First, Seventh and
Eighth Appellants:
C van Rooyen
Instructed by:
Mokhomo Attorneys, Bloemfontein

For Third, Fourth and
Ninth Appellants:
R J Nkhahle (with him M Mazibuko)
Instructed by:

Mokhomo Attorneys, Bloemfontein

For Respondent:
J W Roothman
Instructed by:

Director of Public Prosecutions, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY:   JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
FROM:
The Registrar, Supreme Court of Appeal
DATE:
29 October 2020
STATUS:
Immediate
Please note that the media summary is for the benefit of the media and does not form part of the judgment
of the Supreme Court of Appeal.
Tiry and Others v The State (52/2018 and 149/2018) [2020] ZASCA 137 (29 October 2020)
Today, the Supreme Court of Appeal (the SCA) upheld in part appeals against convictions and sentences
brought by the appellants, against a judgment of the Free State Division of the High Court, Bloemfontein.
The appellants’ convictions and sentences to lengthy terms of imprisonment arose from the operation of
two tank farms for the receipt and storage of stolen petroleum products and the sale of the stolen product
to the retail market and end users. The tank farms were established by the first appellant, Mr Tiry, who was
the kingpin of the entire unlawful operation. Arising out of the operations of these two tank farms, he and
his partner, the second appellant, Ms Sangweni, were both charged on count 1 with managing an enterprise
conducted through a pattern of racketeering activities in terms of s 2(1)(f) of the Prevention of Crime
Act 121 of 1998 (POCA). Together with the remaining appellants they were also charged on count 2 with
conducting or participating in an enterprise conducted through a pattern of racketeering activities in terms
of s 2(1)(e) of POCA. In addition, Mr Tiry and Ms Sangweni were charged with 43 separate counts of theft
of petroleum products arising from their acquisition of the petroleum products. The remaining appellants
were charged with theft in respect of those transactions with which they were involved.
Appellant 1, Mr Tiry, was convicted on count 1 and sentenced to 30 years imprisonment. Appellant 2,
Ms Sangweni, was acquitted on count 1 but convicted on count 2 and sentenced to 18 years imprisonment.
Mr Tiry and appellants 3, 4, 5, 6, 7, 8 and 9 were convicted on count 2. Mr Tiry was sentenced to 20 years
imprisonment and each of the others to 15 years imprisonment. In the case of Mr Tiry this was to be served
concurrently with his sentence on count 1. Appellants 1 and 2 were convicted of theft on counts 3 to 26 and
30 to 45 and sentenced to 15 years imprisonment on each count to run concurrently with their sentences on
count 1 and 2 respectively. Each of appellants 3, 4, 5, 6, 7, 8 and 9 was convicted of various counts of theft
and sentenced to 15 years imprisonment on each count, to run concurrently with their sentences on count
2. The effect of the sentences imposed was the following: in the case of Mr Tiry an effective sentence of
30 years imprisonment; in the case of Ms Sangweni an effective sentence of 18 years imprisonment; and in
the case of each of the remaining appellants an effective sentence of 15 years imprisonment.

The convictions were assailed on the grounds of violations of fair trial rights based on the following: a
denial of the opportunity to cross-examine witnesses and the limitation of an expert witness’ evidence;
acceptance of hearsay evidence in the form of the satellite vehicle tracking reports; the trial judge’s conduct;
invalidity of the search and seizure warrant in respect of one of the farms.

The SCA considered these complaints and dismissed each one of them. The court then considered the
individual charges and found that in some of them, the trial court had erred in convicting the appellants as
there was insufficient evidence.

The court then considered the POCA charges in terms of sections 2(1)(e) and 2(1)(f), on which counts 1
and 2 are based. After a detailed analysis of the interface between the two sections, the court considered
whether charging and convicting someone of both offences does not involve an impermissible splitting of
charges. In this regard the court expressed doubt on the correctness of the majority decision in S v Prinsloo
and Others [2015] ZASCA 207; 2016 (2) SACR 25 (SCA), and supported the approach of the minority
decision in that case.

With regard to sentence, the court reduced Mr Tiry’s effective sentence of 30 years’ imprisonment to
20 years, and Ms Sangweni’s 18 years’ imprisonment to 12 years. The rest of the appellants’ sentence were
reduced to an effective seven years’ imprisonment.

* END *