THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case No: 115/2016

In the matter between:

KHETANI MBUISE NKABINDE                                      FIRST APPELLANT
ORAPELENG LAWRENCE MOGOJE                       SECOND APPELLANT
AUBREY MMUSHI DIKOBE                                           THIRD APPELLANT
JABULANE ELLIOT PAPI MAKHENE                     FOURTH APPELLANT

and

THE STATE                                                                                   RESPONDENT

Neutral citation: Nkabinde v The State (115/17) [2016] ZASCA 75 (01 June
2017)

Coram:
Navsa, Theron and Majiedt JJA and Fourie and Schippers AJJA

Heard:

18 May 2017

Delivered:
01 June 2017

Summary: Criminal Law and Procedure: acting in concert with common purpose:
murder and robbery with aggravating circumstances: purported special entries in
terms of s 317 of the Criminal Procedure Act 51 of 1977: to be strictly complied
with and resorted to only if the irregularity does not appear on the record: appeal
dismissed.

__________________________________________________________________

ORDER
__________________________________________________________________

On appeal from: Free State Division of the High Court, Bloemfontein: (Cillié J,
sitting as court of first instance):

1.
The order of the court a quo granting leave to appeal to a full court is set aside
and replaced with the following:

‘The appellants are granted leave to appeal to the Supreme Court of Appeal
against their convictions and sentences.’
2.
The appeal is dismissed.
__________________________________________________________________
JUDGMENT
__________________________________________________________________

Schippers AJA (Navsa, Theron and Majiedt JJA and Fourie AJA
concurring):

[1] The appellants appeal against their convictions of murder, numerous counts
of attempted murder, robbery with aggravating circumstances, and unlawful
possession of explosives, firearms and ammunition, as a result of a cash-in-transit
heist in 2008 near Petrusburg in the Free State Province. They were each sentenced
to life imprisonment as well as lengthy terms of imprisonment.

A summary of the state evidence
[2] A substantial part of the evidence on behalf of the state is common cause.
The divergences will become apparent in due course. Fidelity Security Services
(Fidelity) is in the business of transporting cash with attendant security. On 8

August 2008 one of its armoured, cash-in-transit vehicles containing a built-in safe
(the armoured vehicle), transported R2.5 million from Bloemfontein to Kimberley.
The money was in four sealed bags, locked in the safe in the armoured vehicle and
manned by four security guards employed by Fidelity (the guards). They were
armed with three LM5 rifles and a Vector 9 mm pistol. The armoured vehicle was
accompanied by two guards in a Ford Bantam delivery vehicle (the Bantam). They
too, were armed with a LM5 rifle and a 9 mm pistol, respectively.

[3] As the convoy was proceeding along the N8 national road, also known as the
Bloemfontein-Petrusburg Road (the road), about 3 km outside Petrusburg they fell
victim to a brazen armed robbery carried out in broad daylight. The robbers
pursued the convoy in no less than five vehicles. Three of those vehicles travelling
at high speed, overtook the Bantam in pursuit of the armoured vehicle. A
Mercedes-Benz rammed twice into the Bantam from behind, causing the driver to
lose control. It left the road and came to a stop opposite to the direction in which it
had been travelling. Four robbers, armed to the teeth and wearing balaclavas, fired
shots at the Bantam, one of which struck its side window and went through the
windscreen. Fortunately the guards were not injured. The robbers then at gunpoint
ordered the guards out of the Bantam, forced them to lie face down on the ground,
and robbed them of their firearms and cellular telephones. With the guards
subdued, the robbers left the scene.

[4] In the meantime, their accomplices, in other vehicles, continued to pursue
the armoured vehicle: one slowed it down from the front and others pursued it
from behind. A third vehicle, another Mercedes-Benz, joined the pursuit and at
high speed slammed into the right side of the armoured vehicle, causing it to
overturn, slide on the roadway and come to a standstill on its passenger side. As

the guards emerged from the overturned vehicle, they were surrounded by some 20
robbers, also armed to the teeth, with automatic rifles, AK-47 assault rifles,
handguns and wearing balaclavas. They demanded the keys to the safe and
threatened to shoot the guards to show that they were serious about getting the
money. When it was clear that the guards did not have the safe-keys, they were
told to lie alongside to the road, face down. All of them were robbed of their
firearms, cellular telephones and some of their wallets.

[5] Next, the robbers tried to blow off the doors to the safe in the armoured
vehicle with dynamite. The guards, lying on the ground, described the sound of the
explosions like those of a bomb or grenade going off. The robbers however
succeeded only in blasting a hole into an internal door granting access to the safe.
But the robbers were determined to get to the money. Some robbers then pulled up
in a black Audi Q7 (the Audi) which stopped at the rear of the armoured vehicle.
They removed an orange-coloured angle-grinder and generator from the back of
the Audi. They placed the generator on the ground, held the angle-grinder and tried
to start it in order to open the safe of the armoured vehicle, but without success.
They also unsuccessfully tried to start the generator. In what follows, I shall refer
to the incidents near the Bantam and the armoured vehicle as ‘the first scene’.

[6] At the first scene, the armoured vehicle lying on the roadway caused a build-
up of traffic on both sides of the road. A number of innocent motorists and their
passengers caught in the traffic were robbed at gunpoint of their cellular
telephones, car keys and cash. In most of these cases, the cellular telephones were
thrown into nearby bushes, to prevent the motorists from contacting the police.
These victims also testified that they heard loud explosions (as the robbers tried to

blow open the safe); and that the robbers fired several shots at the first scene, in
some cases directly at their victims.

[7] In one of these cases, the robbers shot and killed an innocent motorist, Mr
De La Rey, who with his son was driving towards Bloemfontein. They were on
their way home to Potgietersrus, after they had bought sheep at a farm in
Petrusburg. As they approached the first scene, they heard shots being fired in the
veld and wanted to turn around. However, they could not do so quickly enough
because they were in a Ford F250 delivery vehicle (the F250), towing a trailer with
the sheep. Four robbers in a Ford Focus stopped next to them. They wore
balaclavas and three of them pointed their rifles at Mr De La Rey and his son. The
former turned the F250 towards the Focus and accelerated. The robbers then fired
directly at Mr De La Rey and his son. The son was forced to dive for cover and
saw his father’s head turn to one side as he was struck by a bullet. Mr De La Rey
lost control of the F250, which went into the direction of oncoming traffic and his
son turned the vehicle to the left, off the road. The robbers fired a few more shots
at them before fleeing in the direction of Bloemfontein. Later that day Mr De L a
Rey died in hospital of a gunshot wound to the chest.

[8] Another victim, Mrs de Meillon, was on her way to Bloemfontein from
Kimberley. She was accompanied by her mother and two children. As she was
driving on the road she saw the armoured vehicle overturning and come sliding
towards her. Next, she saw armed robbers run towards the armoured vehicle and
realised that it was a robbery. She tried to make a U-turn but some of the robbers in
a BMW, brandishing their firearms out of its windows, forced her to the other side
of the road. Two armed robbers banged on her side of the car and told them to get
out. Mrs de Meillon and her mother were manhandled and the barrel of a rifle was

shoved into her back when the robbers could not find her cellular telephone. She
and her family were forced to lie on the ground, face down. Shortly thereafter she
heard a loud explosion and numerous shots being fired. She said that for at least
half an hour, shots were being fired and the robbers sped up and down, pulling
innocent people off the road. At one point she thought that they were going to be
run over and she and her family crawled to the front of her car. They were robbed
of R2 100 and cellular telephones valued at about R10 000.

[9] After the mayhem at the first scene, and when the robbers could not open the
safe in the armoured vehicle, one of them shouted ‘time up’ and they fled the scene
in the Audi, an Opel Corsa delivery vehicle (the Corsa), a BMW and a Ford Focus
(the Focus). Unbeknown to them, at about 9:15 am on 8 August 2008, police
officers taking part in a mock exercise at an Air Force base outside Bloemfontein
in preparation for the 2010 soccer World Cup, received a report of the heist, that
shots had been fired and that there was an explosion. Colonel Joubert (Joubert),
who was part of the mock exercise and knew the area well, took command of a
task force and set off in an army helicopter in pursuit of the robbers. They were
told that the robbers had fled in an Audi, a Corsa, a BMW and a Focus.

[10] Joubert received a radio report that the robbers had left the road and taken a
secondary gravel road. On a gravel road near Soutpan, some 90 km away from the
first scene, the helicopter approached the Audi and the Corsa from behind. The
vehicles were travelling at high speed: estimated at about 160 km/h. The door of
the helicopter was open and members of the task force signalled the driver of the
Audi to stop numerous times, but to no avail. The helicopter then flew ahead and
hovered across the width of the road in an attempt to stop the Audi. The driver did
not slow down, the helicopter was forced to ascend and the Audi passed under it.

In the meantime the Corsa stopped following the Audi and disappeared in the dust.
The robbers in the Corsa and those in other vehicles got away.

[11] The helicopter continued the pursuit of the Audi on its passenger side, the
windows of which were open. The persons in the Audi fired gunshots at the
helicopter, which was forced to veer further to the left of the Audi to avoid being
hit. A member of the task force then fired a shot at the Audi which shattered its
right rear window. Joubert called for ground reinforcements on the radio. About 1
km past the entrance to Soetdoring Nature Reserve, the Audi suddenly pulled off
the road and stopped. Two of the occupants sitting at the back got out, opened the
tailgate, removed a white and orange object and threw it next to the road. They got
back into the Audi and it sped away.

[12] The chase continued. As the Audi passed over the Modderrivier bridge, its
occupants threw firearms out of the windows. Two shots were fired at the Audi
from the helicopter. One struck its left front wheel and the other, the radiator. Still,
the Audi did not stop, but eventually it was forced to do so near a stationary Toyota
Hilux delivery vehicle (the Hilux) where some people were standing. All four
doors of the Audi were opened and the occupants, later identified as the appellants,
made a run for it. The people standing at the Hilux also ran away. The helicopter
landed and members of the task team pursued the appellants. The second appellant
jumped into the Hilux in an attempt to get away. A shot was fired from the
helicopter, shattering the back window of that vehicle. The second appellant got
out of the Hilux and started running again. Members of the task team caught the
appellants and arrested them. I refer to the events at the place where the Audi was
stopped and the appellants arrested, as ‘the second scene’.

[13] At the second scene, a Vector 9 mm pistol was found in the boot of the
Audi. This firearm was issued by Fidelity to one of the guards in the Bantam, who
was robbed of it at the first scene. A SIM card and Nokia cellphone battery,
belonging to Fidelity and issued to a guard in the Bantam, were found in the Audi.
A packet containing dynamite, Durafuses and insulation tape was found in the boot
of the Audi. A Durafuse was used to ignite the blast at the first scene in the attempt
to blow open the safe of the armoured vehicle. A disassembled R5 rifle, a
magazine, 15 live rounds, balaclavas and gloves were also found in the boot of the
Audi. A Glock 9 mm pistol was found near its left front wheel. That firearm was
found to have been stolen during a robbery in Johannesburg in June 2008. A R5
rifle and an AK-47 assault rifle were found about 700 m from the Audi.

[14] After the appellants were arrested, Joubert drove to the Soetdoring gate,
where the appellants had thrown weapons out of the Audi, and cordoned off that
area. Two police officers who were not in the helicopter but travelling in different
police vehicles, saw these weapons in the road, which were about 500 m from
where the helicopter had landed at the second scene. Two LM 5 rifles which
Fidelity had issued to the guards the morning of the attack on the convoy were
found at the Soetdoring gate. The guards had been robbed of these rifles at the first
scene. Numerous firearms, magazines, parts of firearms and ammunition were also
found at the place where the appellants had thrown the weapons out of the Audi.

[15] At the Soetdoring gate, a civilian who had picked up the orange angle-
grinder which the appellants had thrown out of the Audi, handed it to Warrant
Officer Boukes (Boukes). He also took Boukes to the place where he had picked
up the angle-grinder, which was further from the second scene and from where the
Audi (which was stationary, after the appellants’ arrest) could not be seen. There in

the grass Boukes found the loading mechanism of a LM 5 rifle, an AK-47 assault
rifle, and a slot and slot cover of a LM 5 rifle.

[16] The state proved that a number of spent cartridges found at the first scene
were fired from five weapons found at the second scene. Although the defence
indicated that on this issue it would call an expert to contradict the evidence of
Captain Kekana, the state’s ballistics expert, no such evidence was presented.

The appellants’ version
[17] Initially only the first appellant testified in his defence, after which the
defence closed its case. Subsequently the defence was granted permission to
reopen its case and the second to fourth appellants testified. The appellants’
evidence may be summarised as follows. The first appellant drove the Audi on 8
August 2008. He said that it belonged to Mr Bennie Mohema (Mohema) who had
pledged it to him in 2007 for R100 000. They had agreed that the first appellant
could use the vehicle in the meantime. The appellants were going to Upington to
get spares for vehicles at metal scrap yards. En route, near Petrusburg, they were
stopped by a motorist who had flashed his lights and told them that there was an
incident up the road and that he heard shots being fired. They pulled off the road,
asked somebody for directions and were directed to Immigrant road, but they got
lost and drove down a gravel road, when they saw the helicopter. At that stage the
appellants turned into Bultfontein Road.

[18] The appellants denied that the persons in the helicopter signalled them to
stop, that it hovered across the road to get them to stop or that they had fired shots
at the helicopter. Thereafter the second appellant was shot from the helicopter and
bled. He told the first appellant to stop. The latter made a U-turn and stopped next

to a stationary vehicle (the Hilux). The first appellant said that he did not stop
when the second appellant had been shot because he thought that they were being
attacked. He also said that they, together with the persons at the Hilux, ran into the
veld. However, the second appellant testified that the fourth appellant helped him
out of the Audi and that they did not run away, but stood against the Hilux. The
fourth appellant however said that all of them ran away when they got out of the
Audi. They were arrested by the police who got out of the helicopter.

[19] Apart from the first appellant who said that he had some T-shirts and
toiletries, none of the appellants had any baggage and none was found in the Audi.
They denied that the angle-grinder, explosives, firearms, balaclavas, gloves, SIM
card or the Nokia charger were in the Audi and said that they did not know where
these items came from. When challenged as to whether it was their contention that
the police had planted these items, all of them replied that they did not know. The
first and third appellants said that they would be lying to the court if they tried to
explain where the items came from. They denied that they were involved at the
first scene where Mr De la Rey was shot and killed. They also denied that they had
thrown the angle-grinder or firearms out of the Audi.

[20] The court a quo held that it was clear from the evidence that the attack on
the convoy and the crimes at the first scene were committed by a group of robbers
acting in concert with the common purpose of armed robbery of the armoured
vehicle, and the persons who happened to be there. The appellants were part of that
group. The court rejected their version as ‘nonsense’. They were found guilty of
murder; four counts of attempted murder; five counts of robbery with aggravating
circumstances; numerous contraventions of the Firearms Control Act 60 of 2000
(the Firearms Control Act); and two contraventions of the Explosives Act 26 of

1956 (the Explosives Act). The first appellant was found guilty of theft of the
Audi.

The applications for leave to appeal
[21] The appellants applied to the court a quo for leave to appeal against their
convictions and sentences. In that application they simultaneously applied for the
recusal of the trial judge (Cillié J) on the ground that he was biased; and for special
entries to be made on the record in terms of s 317(1) of the Criminal Procedure Act
51 of 1977 (the Act), in accordance with their proposed special entries (the special
entries).

[22] The trial judge dismissed the application for his recusal. He granted the
application for the special entries; and granted the appellants leave to appeal to a
full court of the Free State High Court against their convictions and sentences.

[23] The full court (Musi, Naidoo JJ and Reinders AJ) did not decide the appeal
against the convictions and sentences. It held that the order by Cillié J was
incompetent since appeals based on special entries under the Act may not be
referred to a full court; and that it had no jurisdiction to hear the appeal. It struck
the appeal from the roll. The full court said that the appellants’ right of appeal
would not be taken away if it did not decide the appeal, and that if they were not
satisfied with the outcome, they would then have to approach this Court, which
would be another costly exercise.

[24] Thereafter the appellants applied to this Court for ‘leave to appeal’ against
the convictions handed down and sentences imposed by Cillié J on 9 July 2013.
The notice of motion states that ‘general leave to appeal and leave to appeal on

Special Entries’ were already granted to a full court; that the grant of the
application for the special entries ‘implied that the appeal had to be heard by the
Supreme Court of Appeal’; and that the court a quo had erred in granting leave to a
full court and ‘impliedly granted leave’ to this Court. The application for leave to
appeal was referred for oral argument in terms of s 17(2)(d) of the Superior Courts
Act 10 of 2013.

[25] Leave to appeal however had already been granted by the court a quo to a
full court. The special entries were properly before this Court and Mr Shapiro for
the appellants, and Ms Giorgi for the state, agreed that it was in the interests of
justice that this Court decide the appeal. They also agreed that the application for
leave to appeal to this Court be construed as an application in terms of s 315(2)(b)
of the Act, ie an application to set aside the direction by the court a quo that the
appeal be heard by a full court; and that it be substituted with an order that the
appeal be heard by this Court.1 This Court granted the application under
s 315(2)(b) of the Act.

The special entries
[26] Section 317(1) of the Act, in relevant part, reads:
‘If an accused is of the view that any of the proceedings in connection with or during his or her
trial before a High Court are irregular or not according to law, he or she may . . . apply for a
special entry to be made on the record (in this section referred to as an application for a special
entry) stating in what respect the proceedings are alleged to be irregular or not according to law,

1 Section 315(2) of the Act, in relevant part, reads:
‘(a) If an application for leave to appeal in a criminal case heard by a single judge of a provincial or local division
… is granted under section 316, the court or judge or judges granting the application shall, if it, he or she or, … they
…  is or are satisfied that the questions of law and of fact and the other considerations involved in the appeal are of
such a nature that the appeal does not require the attention of the Supreme Court of Appeal, direct that the appeal be
heard by a full court.
(b) Any such direction by the court or a judge of a provincial or local division may be set aside by the Appellate
Division on application made to it by the accused or the attorney-general or other prosecutor … after the direction
was given.’

and such a special entry shall, upon such application for a special entry, be made unless the court
to which or the judge to whom the application for a special entry is made is of the opinion that
the application is not made bona fide or that it is frivolous or absurd or that the granting of the
application would be an abuse of the process of the court…’

[27] The purpose of a special entry is to raise an irregularity in connection with
or during the trial as a ground of appeal against conviction under s 318(1) of the
Act.2 The latter section provides, inter alia, that if a special entry is made on the
record, the person convicted may appeal to this Court against his conviction on the
basis of the irregularity stated in the special entry. Recently this Court has held that
the sole purpose of a special entry is to record an irregularity that does not appear
on the record.3 As is shown below, all of the so-called special entries are not proper
special entries but grounds of appeal under s 316 of the Act, because they appear
on the record. Some 60 years ago this Court held that the special entry procedure is
of vital importance and should be utilised where the irregularity does not appear on
the record of the proceedings.4 So, the statement in the application for leave to
appeal to this Court that a special entry is ‘simply a method of applying for an
appeal in regard to irregularities on or off the record’ is quite wrong.

[28] The proviso to s 322(1) of the Act makes it clear that a conviction or
sentence must not be set aside or altered by reason of any irregularity or defect in
the record or proceedings, unless it appears to the appellate court that a failure of
justice has in fact resulted from such irregularity or defect.56 In Naidoo,7 Holmes

2 A Kruger Hiemstra’s Criminal Procedure (Issue 8) at 31-29.
3 S v Staggie [2011] ZASCA 88; 2012 (2) SACR 311 (SCA) para 16.
4 R v Nzimande 1957 (3) SA 772 (A) at 774B.
5 Section 322(1) of the act reads inter alia as follows:
‘In the case of an appeal against a conviction . . . the court of appeal may-
(a) allow the appeal if it thinks that the judgment of the trial court should be set aside on the ground of a wrong
decision of any question of law or that on any ground there was a failure of justice; or
(b) give such judgment as ought to have been given at the trial or impose such punishment as ought to have been
imposed at the trial; or

JA identified two broad categories of irregularities: those of a serious and gross
nature that per se vitiate a trial; and those of a less serious nature, where the court
can separate the good from the bad and is able to consider the merits of the matter.

[29] The respects in which the appellants contend that their trial was irregular and
not according to law, may be summarised as follows:
(a)
Mr De La Rey was a white Afrikaans-speaking farmer like the trial
judge, which ‘strongly suggests bias in favour of the State … against
the Accused’.
(b)
The judge fell asleep during the presentation of the evidence.
(c)
The trial judge unfairly denied the appellants a postponement and
forced their counsel to continue with the trial without evidence
relating to police radio communications that was unlawfully withheld
from the defence, which manifested bias against the appellants.
(d)
In recounting the facts in the judgment, the trial judge ‘spoke as if the
State case had been proved even before he got to the evaluation of the
evidence’.
(e)
Counsel for the state misstated the position and misled the court
regarding the relevance of a video of the first appellant, made after his
arrest.
(f)
The court ‘misdirected itself by omission in that almost all its attention
is given to the State case and the Court ignored crucial and highly
material elements of the defence case.’

(c) make such order as justice may require:
Provided that, notwithstanding that the court of appeal is of opinion that any point raised might be decided in favour
of the accused, no conviction or sentence shall be set aside or altered by reason of any irregularity or defect in the
record or proceedings, unless it appears to the court of appeal that a failure of justice has in fact resulted from such
irregularity or defect.’
6 Hiemstra’s Criminal Procedure fn 2 (Issue 8) at 31-30 and 31-31 (Issue 5).
7 S v Naidoo 1962 (4) SA 348 (A) at 354D-F.

(g)
The court ‘misdirected itself by omission regarding the improbability
of Joubert … not going to all the scenes,’ and ‘it is clear he did not tell
the truth when he said he did not go to the first scene.’
(h)
The court ‘ignored and misdirected itself’ by failing to mention
Mbuli,8 regarding joint possession of the firearms, ammunition and
explosives, given that the appellants did not physically possess these
items.
(i)
The court permitted a police officer to make unfair attacks on the
character of the first appellant.
(j)
The appellants were pointed out by a witness ‘for blatantly racist
reasons.’
(k)
The court described the appellants’ defence as ‘snert’.
(l)
The court allowed the state advocate to put leading questions and the
fact that there was no objection in many instances, shows that the
defence counsel did not provide the appellants with competent and
effective representation.
(m) A dark coloured sack lying on the road with other exhibits was
deliberately excluded from the exhibits by the police.
(n)
Captain Kekana, the state’s ballistic expert, was not a member of the
Association of Firearm and Tool Mark Examiners, and his expertise
was poor.
(o)
The court overlooked the fact that the SIM card was planted by the
police in the Audi.
(p)
The court overlooked the fact that the state did not prove that the Audi
was stolen.

8 S v Mbuli 2003 (1) SACR 97 (SCA).

(q)
The record was at first incorrectly transcribed; at some stages the
interpretation was faulty; and the court ‘unfairly rejected an
application that the proceedings be conducted mainly in English’. This
was aggravated by the fact that the first appellant is hard of hearing.
(r)
When the third appellant testified, the interpreter said that Mr De la
Rey had been shot dead and somebody was going to be found guilty of
the murder.
(s)
Any other matter that counsel for the appellants or the state ‘may wish
to advance as being relevant to the consideration of the application.’

[30] It is convenient to deal firstly with special entry (s). On its own, it is
virtually meaningless and plainly impermissible. The court a quo should not have
made this a special entry on the record.

[31] None of the so-called special entries (a) to (r), are true special entries as
contemplated in s 317(1) of the Act. The court a quo should not have made them
special entries on the record. They are properly grounds of appeal.

[32] It must be stressed that an application for a special entry is not there for the
asking: the requirements of s 317(1) of the Act must be met, and the court must
satisfy itself that the application is bona fide and that it is not frivolous, absurd or
an abuse of the process. The court a quo failed to do so. All the so-called special
entries should not have been made. In some instances they are simply not bona
fide. In others, they are frivolous and consist of points that lack any substance and

cannot be seriously taken; or they are absurd in that they are inconsistent with
reason or common sense and unworthy of serious consideration.9

[33] Special entry (a) has no merit. The trial judge rightly posed the question to
Mr Shapiro whether the allegation of bias is not tantamount to saying that no white
male Afrikaans-speaking judge should preside over a trial where the accused are
black. Mr Shapiro’s answer effectively was ‘yes’ - there are other judges who can
hear such matters. The submission is untenable. But more fundamentally, the
allegation does not begin to meet the threshold test for bias, namely ‘whether a
reasonable, objective and informed person would, on the correct facts, reasonably
apprehend that the Judge had not or would not bring an impartial mind to bear on
the adjudication of the case.’10 Indeed, before us Mr Shapiro conceded that the
allegations in (a) would not justify an application for the recusal of the presiding
judge on the ground of bias. Moreover, he accepted that seen in isolation, special
entry (a) is offensive.

[34] Special entry (b) lacks merit and is an abuse of process. The trial judge,
unsurprisingly, found the allegation that he fell asleep during the trial unfair and
embarrassing, and did not know how to respond to such a vague and general
allegation, raised more than three years after the trial. The appellants were
represented by Mr Potgieter, who Mr Shapiro said was an experienced counsel.
The record shows that Mr Potgieter defended his clients and advanced their
interests without fear. He no doubt would have raised a concern if the judge had
nodded off. Further, a reading of the evidence does not demonstrate a presiding
officer who is not following the proceedings. On the contrary, the evidence of at

9 S v Halgryn 2002 (2) SACR 211 (SCA) para 3; S v Cooper & others 1977 (3) SA 475 (T) at 476C.
10 President of the Republic of South Africa & others v South African Rugby Football Union & others 1999 (4) SA
147 (CC) at 148G para 48; 1999 (10) BCLR 1059.

least 30 witnesses, shows that the judge was alert to and aware of the evidence
being tendered. At the appropriate time he would ask questions if the evidence was
unclear.

[35] There are numerous examples of this but three will suffice. One of the
guards testified that a firearm with serial number 106355 was issued to him.
Shortly thereafter he said that the serial number was 104355. The judge said that
the latter number differed from the one he had heard ie 106355. He was right and
the witness said that the correct number was 104355. Secondly, when Joubert was
asked about the position he had taken in the helicopter, the judge interrupted
counsel and asked Joubert to explain the seating arrangements. Joubert replied that
the helicopter had no seats, that it was a shell, as he put it, and that four officers
were sitting on the floor at each door. Thirdly, when the second appellant testified,
Mr Potgieter put it to him that he had met the other appellants in Bloemfontein on
8 November 2008. The judge pointed out that the date could not be right because
the appellants were in custody. Again, he was right. Aside from this, the appellants
can point to no prejudice, irregularity or failure of justice because the judge
allegedly fell asleep. As is demonstrated below, the appellants’ convictions are
entirely sustainable on the evidence.

[36] Special entry (c) is not bona fide and a distortion of the facts. On no less
than three occasions, the appellants applied for the postponement of the trial,
during which evidence was heard, causing a delay of some nine months in the
commencement of the trial. The record shows that in those applications, the judge
was extremely patient and tolerant, particularly in the light of the reasons for the
postponement: the appellants sought radio control records relating to police
communications and information as to when the helicopter had taken off and

landed; and the first, second and fourth appellants wanted to consult jointly in
prison (the third appellant was released on bail). In any event, the police were not
in possession of the records relating to radio communications, which were held by
an independent service provider. Mr Potgieter informed the trial court that he had
taken steps to obtain these records from the service provider, which he wanted to
use in cross-examination of the guards. Nothing further was heard from Mr
Potgieter in this regard.

[37] The police witnesses testified about the radio communications they received
concerning the incident and on this score, their evidence was not seriously
challenged. The defence sought the records of these radio communications in an
attempt to show what the security guards had told Joubert concerning the vehicles
used by the robbers. Mr Potgieter however had in his possession Joubert’s witness
statement with which he could confront the security guards on this issue.
Moreover, the trial judge informed Mr Potgieter that if necessary, any security
guard could be recalled for cross-examination should the records of the radio
communications reveal discrepancies in their version. The appellants plainly were
not prejudiced.

[38] Special entries (q) and (r) are not bona fide, and are frivolous and absurd.
The appellants have not stated how the initial incorrect transcription of the record
is alleged to be irregular and not according to law. The proceedings were
interpreted in the mother tongue of the appellants, and it was unnecessary to
conduct them in English. The parts of the record upon which Mr Shapiro relies are
a distortion and do not support the allegations in these special entries. When Mr
Potgieter informed the court that the appellant had complained that the
interpretation was incorrect in some respects, the interpreter was replaced. Once

during the proceedings, Mr Potgieter informed the court that the first appellant did
not have his hearing aid, but that he was willing to proceed with the trial and would
indicate to Mr Potgieter if anything needed to be explained. The Judge noted this
and said that if necessary, the first appellant could sit nearer (to aid his hearing).
Subsequently, there was no complaint during the trial about the first appellant’s
hearing.

[39] The remaining special entries are to a large extent interrelated and concern
the trial court’s judgment on the merits and will be dealt with in the analysis of the
merits of the appeal.

Analysis
[40] Regarding the merits, there can be no question that the robbers had agreed to
attack the convoy; that the attack was carefully planned; that all the robbers
participated in its execution; and that each robber associated himself with the acts
perpetrated by the others - the murder, attempted murder and armed robbery of
innocent civilians at the first scene. This alone is sufficient to establish common
purpose.11 The appellants foresaw and reconciled themselves with the possibility
that the execution of the armed robbery by their co-conspirators - who were
heavily armed with assault weapons - could result in the death of a person. They
were thus rightly convicted of murder.12

[41] But even in the absence of an agreement to attack the convoy, the evidence
conclusively shows that the appellants were present at the first scene where the
said acts of violence were being committed; that therefore, they knew or must have

11 C R Snyman Criminal Law 6th ed (2014) at 259.
12 S v Majosi & others 1991 (2) SACR 532 (A) at 536I-537E.

been aware of these attacks; that they intended to make common cause with the
robbers who committed those acts; and that they manifested this intention by
themselves performing acts of association with the conduct of the other robbers.13

[42] The ineluctable inference to be drawn from the facts is that the appellants
were part of the robbers wearing balaclavas and armed with rifles and AK-47
assault weapons at the first scene. The evidence of the police who pursued them in
conjunction with the retrieval of the items referred to earlier, lead to the
compelling conclusion that the persons who had been travelling in the Audi and
who had been arrested by the police, namely the appellants, were the individuals
involved in the murder and robberies at the first scene.

[43] Then there is the appellants’ evidence. Unsurprisingly, they could not
explain how the incriminating items came to be in the boot of the Audi. They did
not suggest that the police had planted them there. And it was never put to Joubert
that he, or any officer under his command, had ‘planted’ any evidence at the
second scene. So there is no room for that contention. In fact, the first and third
appellants were not willing to proffer any explanation for the presence of the
incriminating items, for fear of ‘lying’. The Corsa following them at high speed is
also unexplained. The appellants’ version that they were on their way to Upington
but got lost and ended up on a gravel road and that they did not try to dispose of
the angle-grinder and weapons, is highly improbable, let alone reasonably possibly
true. It may safely be rejected as false. And there is nothing wrong in
characterising their version as nonsense – in Afrikaans, ‘snert’.14

13 S v Mgedezi & others 1989 (1) SA 687 (A) at 705I-706B.
14 F F Odendal and R H Gouws Die HAT (Verklarende Handboek van die Afrikaanse Taal) 4ed (2000) defines
‘snert’ as ‘onsin’. In English, ‘nonsense’ or ‘rubbish’.

[44]  Mr Shapiro’s theory that the police planted the SIM card in the Audi and
that Joubert was dishonest when he said that he never went to the first scene,
strains credulity. The helicopter and its occupants were nowhere near the first
scene: the unchallenged evidence is that Joubert saw the Audi for the first time
some 90 km away from the first scene. And the facts show that none of the police
officers who collected the evidence at the second scene, were present at the first
scene. The theory implies a conspiracy of epic proportions. It would mean the
following. The police somehow obtained the cellular telephone and Vector 9 mm
pistol issued to a guard (of which he had been robbed) from the robbers (who had
escaped) and placed the SIM card of that phone and the pistol in the Audi. In a
moving scene, the police then obtained the angle-grinder, and LM 5 rifles (of
which the guards at the first scene had been robbed) from the robbers (who had
also escaped) and planted these items at two separate places on the road where they
were found. They also planted explosives and fuses in the Audi, coincidentally of
the same type as those used at the first scene. The pursuit of the appellants in a
helicopter and their attempts to get rid of the angle-grinder and weapons are all a
figment of Joubert’s imagination. The theory is fanciful and absurd.

[45] The appellants’ possession of the firearms and explosives may be dealt with
briefly. This is not a case where a single possessor exercised possession of firearms
on behalf of a group. Instead, all the appellants at the relevant times had the
intention of jointly possessing the firearms and explosives, as a group.15 This was
established by the evidence. There were no competing claims to the firearms and
explosives. The appellants had the requisite intention: firstly, they all knew of the
existence of the firearms and explosives in their possession and secondly, that they

15 Mbuli fn 8 above para 71.

were exercising control over them.16 Their joint possession as a group and common
state of mind is buttressed by their attempts to get rid of the firearms. When they
were being pursued by the helicopter, the Audi stopped and two of them got out so
as to dispose of the angle-grinder and an AK-47 assault weapon. Later they threw
more firearms out of the windows of the Audi. All of them attempted to flee once
the Audi had been stopped. The only reasonable inference to be drawn from these
facts is that the appellants had the common intention to possess the firearms and
explosives.

[46] What remains is the charge of theft against the first appellant. The state
proved that the Audi was one of two Audi Q7’s stolen from Port Elizabeth harbour
on 28 June 2007. The first appellant’s initial explanation to the police was that he
had borrowed the vehicle from Mr Thabo Stimela (Stimela). The police followed
up that information, which revealed that Stimela had disappeared and that a
warrant for his arrest had been issued. However, during the trial the first
appellant’s explanation for his possession of the Audi changed. It was put to the
state witnesses, and the first appellant testified, that the Audi belonged to Mohema
who had pledged it to him in September 2007 for R100 000. As the court a quo
noted, according to the appellant, Mohema had coincidentally passed away.

[47] On his own version the first appellant had driven the Audi and was in
possession of it some three months after it was stolen in Port Elizabeth. The nature
of the stolen thing is an important element in determining what constitutes recent
possession. If it is of a kind which is usually, and can easily and quickly be
disposed of, anything beyond a relatively short period generally will not constitute

16 Snyman fn 11 at 261.

recent possession.17 The thing in this case - a brand-new, expensive sports utility
vehicle - is not one which can easily and rapidly pass from person to person. Aside
from this, the unchallenged evidence is that two number plates displaying different
registration numbers, not linked to any owner on the police registration system,
were found in the boot of the Audi. Now if the first appellant’s explanation is true
that Mohema, supposedly the owner of the Audi, pledged the vehicle to him, why
would these number plates be necessary at all? And why would they be in the
Audi, if not to be used illegally? All of this, coupled with the first appellant’s
different explanations for his possession of the Audi, in my view, is sufficient to
justify the conviction of theft.

[48] On a conspectus of all the evidence, what all of this shows, is that special
entries (d) to (p) are frivolous and absurd. Even considered as grounds of appeal,
they have no merit. They are unsustainable on the evidence. The state proved its
case beyond reasonable doubt and accordingly, the appellants were rightly
convicted.

Sentence
[49] The appellants were sentenced as follows:
Count 1 - theft: the first appellant: 15 years’ imprisonment;
Counts 11, 19, 22 and 25 - attempted murder: 7 years’ imprisonment on each
count;
Counts 13-15 and 17-18 - robbery with aggravating circumstances: 15 years’
imprisonment on each count;
Counts 16 and 20 - contravention of s 120(6)(a) of the Firearms Control Act: 3
years’ imprisonment on each count;

17 S v Skweyiya 1984 (4) SA 712 (A) at 715C-E.

Count 21 - murder: life imprisonment
Count 23 - contravention of s 27(1) of the Explosives Act 26 of 1956: 6 years’
imprisonment;
Count 24 - contravention of s 6(1) and (2) of the Explosives Act 26 of 1956: 1 year
imprisonment;
Count 26 - contravention of s 3 of the Firearms Control Act 60 of 2000: 15 years’
imprisonment;
Count 27 - contravention of s 90 of the Firearms Control Act 60 of 2000: 1 year
imprisonment; and
Count 28 - contravention of s 4 of the Firearms Control Act 60 of 2000: 15 years’
imprisonment.

[50] The court a quo noted that in terms of the provisions of the Correctional
Services Act 111 of 1998, the sentences imposed on all the charges run
concurrently with the life sentence imposed on the appellants, by the operation of
law.18 It ordered, in terms of s 280 of the Act, that all the sentences imposed in
respect of all the other charges should also run concurrently with the sentence of
life imprisonment,

[51] It is trite that sentencing lies in the discretion of the trial court. In the
absence of material misdirection by the trial court, an appellate court cannot
approach the question of sentence as if it were the trial court and then substitute the
trial court’s sentence simply because it prefers to.19

18 Section 39(2)(a)(i) of the Correctional Services Act.
19 S v Malgas 2001 (2) SA 1222 (SCA) para 12.

[52] The court a quo imposed the minimum sentences prescribed in the Criminal
Law Amendment Act 105 of 1997 in respect of the charges of murder, robbery
with aggravating circumstances, possession of semi-automatic and automatic
firearms, and possession of explosives. After considering the factors required to be
taken into account in the imposition of sentence, including the appellants’ personal
circumstances, the court a quo came to the conclusion that there were no
substantial and compelling circumstances to deviate from the prescribed minimum
sentences.

[53] In this regard, the court a quo said that the robbery was planned, and
brazenly executed on a public road by some 20 heavily armed robbers who did not
hesitate to indiscriminately shoot, and, I would add, kill an innocent civilian. They
terrorised defenceless motorists to overcome any resistance. Cash in transit heists
are becoming an epidemic in this country and communities expect the courts to
impose severe sentences for these crimes. All the appellants had completed high
school and earned an income. They committed the crimes out of greed. The
seriousness of the crimes outweighed their personal circumstances.

[54]  The reasoning of the court a quo cannot be faulted. This Court has held that
the prescribed minimum sentences should not be departed from lightly and for
flimsy reasons. The legislature has ruled that these are the sentences that
ordinarily, and in the absence of weighty justification, should be imposed for the
specified crimes, unless there are truly convincing reasons for a different
response.20 This is not such a case. The sentences are appropriate.

20 Malgas fn 17 para 25.

[55] In the result, I make the following order:

1.
The order of the court a quo granting leave to appeal to a full court is
set aside and replaced with the following:
‘The appellants are granted leave to appeal to the Supreme Court of
Appeal against their convictions and sentences.’

2.
The appeal is dismissed.

_________________
A Schippers
Acting Judge of Appeal

Appearances
For Appellant:
S Shapiro
Instructed by:
Shapiro Attorneys, Johannesburg
c/o Tshangana Attorneys, Bloemfontein

For Respondent:

S Giorgi
Instructed by:
The Director of Public Prosecutions, Bloemfontein

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

NKABINDE MBUISE KHETANI & OTHERS V THE STATE

From:  The Registrar, Supreme Court of Appeal
Date:    1 June 2017
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.

The Supreme Court of Appeal (SCA) handed down judgment today in an appeal
from the Free State Division of the high court, Bloemfontein. The SCA dismissed the
appellants’ appeal against their convictions and sentences for murder and armed
robbery, arising from a cash-in-transit heist on the N8 National road near Petrusburg
in 2008.

The issues on appeal were whether the appellants’ had been properly convicted and
sentenced. They alleged that their trial was irregular, based on numerous special
entries on the record in terms of s 317(1) of the Criminal Procedure Act 51 of 1977
(CPA), which included allegations that the trial judge was biased and that the police
‘planted’ evidence to implicate the appellants in the crimes.

The SCA held that the special entry procedure must be used only if an irregularity in
the trial appears on the record. The so-called special entries appeared on the record
and were thus grounds of appeal. Special entries are not there for the asking; s 317
of the CPA must be strictly complied with.  A court must satisfy itself that a special
entry is bona fide, and not frivolous or absurd.  The special entries in this case were
held to be frivolous and absurd.  The appellants’ convictions and sentences were
confirmed.