THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case no: 538/06
REPORTABLE

In the matter between:
Siyabulela TANDWA

First appellant
Aubrey GODOLOZI

Second appellant
Nkqubela TEKULA

Third appellant
Khaya GASA

Fourth appellant
Tanduxolo ROZANI

Fifth appellant
Mzukiseni TSHEFU

Sixth appellant
Luyanda NGUBELANGA

Seventh appellant

and

The STATE

Respondent

Before:
Cameron JA, Mlambo JA and Hancke AJA
Heard:

Monday 19 and Tuesday 20 February 2007
Judgment:    Wednesday 28 March 2007

Criminal law – Right to fair trial (s 35 of Bill of Rights) – accused accusing legal
representative of misconduct leading to fair-trial violation – legal representative denying
allegations – legal representative’s account admissible in evidence – how appeal court
should deal with unprobed counter-assertions – accused’s allegations not raising real
possibility that there was incompetence or that bad advice was given or that misconduct
occurred
Right to silence (s 35(3)(h) of Bill of Rights) – state case based on inference – accused’s
silence pivotal to his conviction – silence not without consequences
Admission of unlawfully obtained evidence (s 35(5) of Bill of Rights) – evidence procured
by assault and torture – admission violates fair trial guarantee and also detrimental to
administration of justice
Dock identification of accused –sufficient in circumstance to sustain conviction

Neutral citation: This judgment may be cited as S v Tandwa [2007] SCA 34 (RSA)

CAMERON JA, MLAMBO JA and HANCKE AJA:

[1] During the early morning hours of Wednesday 18 November 1998, a
robbery took place at the Standard Bank in Mthatha, Eastern Cape, in
which the perpetrators looted R9.6 million from the branch’s strongroom.
The police arrived soon after the bank’s usual daily round began.  They
found three bank employees locked inside the now-depleted strongroom.
All three had spent the previous night under the robbers’ guard.  At dawn
the robbers brought them to the bank and instructed them to de-activate
the alarm and to open the strongroom safe.  All three claimed to have
done so under compulsion.  But within hours, police suspicion focused
intense scrutiny on two of the three, Mr Siyabulela Tandwa and Mr Aubrey
Godolozi.  By the day’s end the two had been arrested on suspicion of
complicity in the crime.  They later stood trial in the Mthatha High Court as
accused 1 and 2, with six further accused, on a charge of robbery in
contravention of s 155(1) and (2) of the Transkei Penal Code, Act 9 of
1983.1

1 Section 155(1) and (2) of the Transkei Penal Code, Act 9 of 1983:
‘(1) Any person who steals anything and, at or immediately before or immediately after the time of stealing it,
uses or threatens to use actual violence to any person in order to obtain or retain the thing stolen or to
prevent or overcome resistance to its being stolen or retained, shall be guilty of robbery.
(2) Any person who commits robbery or attempted robbery with aggravating circumstances as defined in
section 8 of this Code shall be liable on conviction to be sentenced to death, or to such lesser sentence as
the court may deem fit.’
Section 8 defines ‘aggravating circumstances’ in relation to robbery or attempted robbery as –
‘(i) the wielding of a firearm or any other dangerous weapon;
(ii) the infliction of grievous bodily harm; or
(iii) a threat to inflict grievous bodily harm, by the offender or an accomplice on the occasion when the
offence is committed, whether before or during or after the commission of the offence.’

[2] At the trial’s commencement the accused (who were all legally
represented) pleaded not guilty and declined to offer any plea
explanations, reserving their defence.  Seven of the eight were convicted
as charged.  Accused 4, Ms Xoliswa Tekula, the wife of accused 3, was
acquitted.  Those convicted were sentenced to terms of imprisonment of
between 17 and 20 years.  With the leave of the trial judge (Van Zyl J) the
seven appellants now appeal against their convictions only.  We refer to
them as they were arraigned in the trial court (where the other accused
were Mr Nkqubela Tekula (3), Mr Khaya Gasa (5), Mr Tanduxolo Rozani
(6), Mr Mzukiseni Tshefu (7) and Mr Luyanda Ngubelanga (8)).
[3] The robbers’ plan and its execution were soon established, and were not
disputed at the trial.  In the course of the evening of 17 November 1998 –
a drizzly night – the three bank employees were accosted at their homes
by armed men and taken together with the members of their households
to the residence of accused 2, where they were detained overnight.  The
three bank employees were taken to a separate room – that of accused 2.
There they were questioned about the bank’s security systems and alarm
codes.  Early the next morning the robbers proceeded to the bank with
accused 1 and 2 and the third employee, Mr Mtutuzeli Sibindlana, where
they disarmed the alarms and gained access to the bank and its vaults.
The loot was taken, and the robbers scarpered after locking the three
employees in the safe where the police later found them.

[4] The state case against the eight accused pivoted on three axes: direct
evidence against five; inferential evidence arising from possession of part
of the loot against one; and inferential evidence from lapses in bank
procedures implicating the two employees.  Direct evidence of the
complicity of five of the accused came from an accomplice witness, Mr
Eric Pakamani Dlamini, who in court identified accused 3, 5, 6, 7 and 8 as
fellow robbers.  In the case of each of these accused, the state also led
corroborating evidence.  This included a confession, admissions and other
compromising statements and pointings out, as well as cash retrieved.
[5] Against accused 4 (spouse of accused 3), the state led evidence that she
had safeguarded some of the loot, contending unavailingly that this –
together with her associated conduct and statements – established her
complicity.
[6] Against accused 1 and 2 the state’s case rested largely on lapses in and
deviations from bank procedures which it contended were compatible only
with the inference that the two were complicit in the crime.  During police
questioning accused 1 denied his involvement (though he pointed the
police to accused 2 as having possibly been involved).  But accused 2,
the police testified, soon admitted complicity, and it was he who led them
to accused 3, 4 and 5.  After the state closed its case, accused 2 testified
in his own defence, and was vigorously cross-examined.  By contrast,
accused 1 did not testify at all.  His advocate closed his case without
calling him to the witness stand.  After he was convicted, but before being

sentenced, he sacked his advocate (who had represented him for the
preceding sixteen months), claiming that he had been prevented from
testifying in his own defence.  Our first task is to examine this claim and
consider its consequences.

Accused 1’s legal representation fair-trial complaint
[7] The Constitution guarantees every accused person the right to a fair trial
(Bill of Rights s 35(3)).  This includes the right ‘to choose, and to be
represented by, a legal practitioner’ (s 35(3)(f)), as well as the right ‘to
have a legal practitioner assigned to the accused person by the state and
at state expense, if substantial injustice would otherwise result’ (s
35(3)(g)).  The right to chosen or assigned legal representation is a right
of substance, not form:
‘The constitutional right to counsel must be real and not illusory and an accused has,
in principle, the right to a proper, effective or competent defence.’2
Incompetent lawyering can wreck a trial, thus violating the accused’s fair
trial right.  The right to legal representation therefore means a right to
competent representation – representation of a quality and nature that
ensures that the trial is indeed fair.3  When an accused therefore
complains about the quality of legal representation, the focus is no longer,
as before the Constitution, only on the nature of the mandate the accused

2 S v Halgryn 2002 (2) SACR 211 (SCA) para 14, per Harms JA for the Court; S v Mofokeng 2004 (1) SACR
349 (W) para 18 (Louw AJ, Gudelsky AJ concurring).
3 Compare Strickland v Washington 466 US 668 (1984) 685 (‘An accused is entitled to be assisted by an

conferred on his legal representative,4 or only on whether an irregularity
occurred that vitiated the proceedings5 – the inquiry is into the quality of
the representation afforded.
[8] It need hardly be added that accused 1 enjoyed a constitutional right to
testify in his own defence.  The right of an accused person to ‘adduce’
evidence (Bill of Rights s 35(3)(i)) clearly encompasses the right to
adduce his own evidence.  It also follows clearly from the structure of s 35
that an accused person has the right to represent himself, without the
interposition of counsel.6  If the unwanted or inept advice of counsel
improperly or unfairly thwarted his exercise of that right, his right to a fair
trial would have been infringed.
[9] And this exactly is accused 1’s complaint: that his counsel’s
incompetence, bad advice and obstructive conduct violated his fair trial
guarantee.  We must explain the circumstances under which his complaint
arose.  The trial was protracted – it started in November 1999, one year
after the robbery, and the appellants were convicted thirty months later.

attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair’), per
O’Connor J for the Court.
4 See R v Matonsi 1958 (2) SA 451 (A), which was decided on the basis that even if counsel had ‘prevented’
the accused from testifying, the nature of counsel’s mandate in English and Roman-Dutch law was such that
an accused in a criminal case could not, short of terminating counsel’s mandate, question counsel’s conduct
of the trial and claim relief because of the conduct in question.  In that case, the accused had taken no steps
to withdraw counsel’s mandate and had expressed no disagreement with the conduct of the case until after
verdict.  The trial was therefore judged regular (per Schreiner JA on behalf of the majority at 456A-457E).
The minority judgment (per van Blerk AJA at 458D-F), though endorsing the outcome, expressed reservation
about the far-reaching proposition the majority appeared to endorse that the accused forfeited control of
counsel’s conduct once counsel was mandated to conduct the trial.  The approach differs from that to be
taken under the Constitution.
5 As Trollip JA envisaged in S v Majola 1982 (1) SA 125 (A) 133F, read in the light of S v Zuma 1995 (2) SA
642 (CC) para 16.
6 Compare Faretta v. California 422 U.S. 806 (1975) (criminal defendant has an independent constitutional
right of self-representation: he may therefore proceed to defend himself without counsel when he voluntarily
and intelligently elects to do so).

Initially accused 1 was represented by Mr Rowan, later by Mr Noxaka,
and from 1 March 2001 by Mr Fuyiziwe Shepherd Gagela, an advocate
practising at the Bar in Mthatha, who appeared on Legal Aid Board
instructions.
[10] The state closed its case against the accused on 10 September 2001,
more than six months after Mr Gagela took over accused 1’s defence.  On
the same day various of the accused, including accused 1 (but not
accused 2), applied for their discharge.  All the applications were refused.
In dismissing accused 1’s application, the trial judge found that ‘there is
evidence at this stage justifying an inference that he may have been
involved in the commission of the offence’.  Thereupon accused 1 and
accused 4 closed their cases without testifying.  Accused 4 was acquitted,
but not accused 1.
[11] When the convictions were brought in on 23 May 2002, accused 1’s bail
was revoked, and he was taken into custody.  Six weeks later, on 10 July,
all the accused appeared in court when a postponement was granted.
When court resumed on 23 July, the record reflects that Mr Gagela had
been to see the judge in chambers.  In court, he recorded cryptically that
he was ‘withdrawing as counsel of record for accused 1 because the
communication has since waned’.  The judge established from Mr Gagela,
and confirmed from accused 1, that his withdrawal was at the request of
accused 1.  He then asked accused 1 whether there was ‘any possibility’
that he could ‘resolve your difficulties’ with Mr Gagela.  To this accused

1’s only response was ‘I don’t want to be represented, I want to talk on my
own.’  He offered no further elaboration.
[12] The state then led evidence in aggravation of sentence.  The next day,
24 July, the accused were invited to lead evidence in mitigation.  After the
judge had explained his rights and opportunities to accused 1, he took the
stand.  He proceeded to relate his personal circumstances, including
details about his employment with the bank, his family, his financial
position and health.  In the midst of these details, he stated (second-
person appellations omitted):
‘When this matter was proceeding I didn’t elect to remain silent, I did want to speak but
I was advised not to speak.  I was advised by my attorney saying that he knows what
he says because he is an attorney, because he knows the law.  I did as he told me
thinking that he knew what he was saying.  I also have two photos showing my
involvement in the sport as I have told the Court, I don’t know whether the Court would
also like to see them or whether the Court has got any interest in this sport.’
In response the judge merely indicated that since the evidence of his
involvement in sport was unlikely to be disputed, it was not necessary to
hand up the photographs.
[13] Although he was then cross-examined by other counsel and by the
state, and although the judge inquired of accused 1 at the end of his
evidence whether he wished to say anything else, nothing further
emerged.  Sentence was passed two days later, on 26 July, accused 1
being sentenced to 18 years.

[14] Only in an affidavit lodged with his application for leave to appeal on 31
July 2002 did accused 1 elaborate on his claims.  For the first time he now
stated that he and his advocate had actually agreed that he would testify –
but that his advocate had not only thwarted this, but ‘misled’ him about the
legal position.7
[15] When he granted the appellants leave to appeal against their
convictions on 15 November 2002, the trial judge did not refer to these
allegations.  On appeal, however, counsel for accused 1 relied on these
affidavit assertions, urging us to find that –

7 ‘At the end of the state case I consulted and agreed with my counsel that he should apply for my discharge
and if discharge is refused I should give evidence.
The application for discharge was refused.
Then there was further consultation between my defence counsel and myself where I insisted that I should
testify, but my counsel stated that –
* I do not know the law and he is the one who knows the law, and I should not testify at all as there was no
case against me.
* The judge would again look at the same evidence as he has and review his decision of refusing the
discharge, when he deals with the whole of the evidence more especially that even the evidence of one Mr
Eric Dlamini who gave evidence as an accomplice had told the court that I was the only person amongst all
the accused who did not know of the conspiracy to rob the bank, and furthermore at no time that I was one of
the accused who shared the spoils of the robbery.
As a layman, I truly believed the advice of the counsel, and I accordingly did not testify.
When the judge gave the judgment at the end of the case, I was so shocked when the judge said that, since
I did not give evidence the court only remained with the evidence of the state and that even though I had the
right not to testify, the court is compelled to accept the evidence of the state as correct and I was then
convicted on all counts like the rest of the seven other accused.
I submit that, had my counsel told me that I was not compelled to testify [but] further that, if I do not testify,
the court is entitled at the end of the case to draw an inference against me, I would have elected to testify.
This was the most unfortunate situation that I had to fall onto.
The result of the conduct of my counsel led me to discharge him at the stage when mitigation of sentence
had to be done; and I told the court that, because of the amount of suffering brought about by my being
misled on aspects of law by my previous counsel, it would be in my interests that I should conduct carry on
without legal representation. …
I submit that I have now been informed and verily believe that, when the court refuses an application for
discharge at the end of the state’s case, that means that there are some things that do not satisfy the court
that a discharge would be a proper verdict at that stage; and the effect thereof is that the accused should in
his own interest decide whether he should testify in order to place the court in light in respect of anything the
court would like to know.  I was in the dark as to such aspects and the same were not brought to my
attention by my previous counsel.
I submit that by reason of the conduct of my own counsel I did not have a fair trial at all.  I believe that I may
apply for leave to appeal only on this ground that I had an incompetent counsel or I acted on wrong advice of
a lawyer, resulting in an unfair trial.’

(a) the accused was not properly informed about the consequences of not
testifying;
(b) the accused to his own prejudice followed his advocate’s advice not to
testify;
(c) the accused’s right to a fair trial was accordingly breached and his
appeal should on this ground be allowed.
[16] In response, the state appended to its written argument an affidavit from
advocate Gagela disputing the claims of accused 1.  Mr Gagela asserted
that throughout the period he represented accused 1 ‘we had constant
communication with regard to the case, especially during the defence
case’, and that he had fully and properly advised his client about the risk
of not giving evidence.8

8 ‘After an application for a discharge was refused, I advised Mr Tandwa about the consequences of giving or
not giving evidence in his defence.  He readily accepted my advice and he elected not to testify after
weighing up all the advice I had given him.
I refute that I stopped Mr Tandwa from testifying and giving evidence in his defence at any stage during the
court case. …
The question of Mr Tandwa testifying if an application was refused was never discussed in detail at all during
consultations prior to the discharge application being made, as I felt it was premature at that stage.  Prior to
the discharge application I had advised him of the procedures that would occur once the state closed its
case.  For that reason I flatly deny that there was an agreement that he would testify if the application was
refused. …
Throughout my dealings with Mr Tandwa I understood him to be a man of independent thinking and
reasoning.  Certainly he is a man of such a calibre that he would have elected to testify if he wanted to.  At
no stage during the defence case did he indicate that he wanted to testify even when the other accused and
their witnesses testified.  Had he indicated that he wanted to testify I would have applied for the [re-]opening
of his case in view of his change of heart.
I strenuously deny that I advised him that the judge would again look at the same evidence and would then
review his decision not to grant a discharge because the test is different after all the evidence has been led.
…
I dispute that I withdrew from representing Mr Tandwa as a result of my conduct.  It was as a result of his
election not to testify, which led to his conviction, that was devastating to him, and for this he apportioned the
blame to me. …
I started representing Mr Tandwa on 5 March 2001.  During the trial Mr Tandwa never expressed any doubt
about my competence as his counsel.  Even though his application for a discharge was refused, I continued
to appear on his behalf and he never doubted my abilities as his counsel.
In the conduct of Mr Tandwa’s case I discharged my duties to the best of my ability and I never gave Mr
Tandwa any wrong legal advice.’

[17] The first question is how we must deal with the factual disputes the
accused’s claims present.   How should an appellate court deal with
conflicting testimony from an accused and his former legal advisor as to
what transpired between them?9  In particular, is his legal representative’s
affidavit admissible?  The accused’s entitlement to legal professional
privilege protected the communications between him and his advocate
from disclosure.  What transpired in their discussions cannot be revealed
unless the accused gave his consent or waived his privilege.  The
common law rule, though it embodies a substantive principle central to the
functioning of the legal system, and not merely a rule of evidence or
procedure,10 is statutorily embedded in our law of criminal procedure.11
[18] Since accused 1 has nowhere expressly consented, the admissibility of
his advocate’s affidavit depends on whether he waived his right to legal
professional privilege.  In Peacock v SA Eagle Insurance Co Ltd12 and

9 The question seems to be novel.  In previous cases concerning an alleged failure of legal representation,
the complaint could be adjudged from the record (S v Bennett 1994 (1) SACR 392 (C) and S v Halgryn 2002
(2) SACR 211 (SCA)) or from its attendant documents (S v Mofokeng.2004 (1) SACR 349 (W) (heads of
argument)).  In R v Matonsi 1958 (2) SA 451 (A) the complaint was decided without evidence from counsel
as to what passed between him and the accused (457A-B and 458H).  In S v Majola 1982 (1) SA 125 (A)
there was no dispute because counsel admitted that he had not asked the accused whether he wished to
testify: see 129E-F, 131H and 133E.
10 See the discussion of this court’s and other decisions in DT Zeffertt, AP Paizes and A St Q Skeen, The
South African Law of Evidence (2003) 570-576.
11 Criminal Procedure Act 51 of 1977 s 201:
'No legal practitioner qualified to practise in any court, whether within the Republic or elsewhere, shall be
competent, without the consent of the person concerned, to give evidence at criminal proceedings against
any person by whom he is professionally employed or consulted as to any fact, matter or thing with regard to
which such practitioner would not on the 30th day of May 1961 by reason of such employment or
consultation, have been competent to give evidence without such consent: Provided that such legal
practitioner shall be competent and compellable to give evidence as to any fact, matter or thing which relates
to or is connected with the commission of any offence with which the person by whom such legal practitioner
is professionally employed or consulted, is charged, if such fact, matter or thing came to the knowledge of
such legal practitioner before he  was professionally employed or consulted with reference to the defence of
the person concerned.’
12 1991 (1) SA 589 (C) 591-2 (Farlam AJ).

Harksen v Attorney-General Cape,13 the courts drew a distinction between
implied and imputed waiver of legal professional privilege.  Implied waiver
occurs (by analogy with contract law principles) when the holder of the
privilege with full knowledge of it so behaves that it can objectively be
concluded that the privilege was intentionally abandoned.  Imputed waiver
occurs where – regardless of the holder’s intention – fairness requires that
the court conclude that the privilege was abandoned.  Implied waiver
entails an objective inference that the privilege was actually abandoned;
imputed
waiver
proceeds
from
fairness,
regardless
of
actual
abandonment.
[19] In propounding a doctrine of imputed  waiver14 (which may also be
termed fictive or deemed waiver),15 the judges in Peacock and Harksen
drew on a passage from Wigmore, much-cited in our courts, that enjoins
‘fairness and consistency’ in inferring the extent of an implied waiver of
attorney/client privilege.  Wigmore in the same paragraph goes on to
conclude that it is a ‘fair canon of decision’ that ‘when a client alleges a
breach of duty by the attorney, the privilege is waived as to all
communications relevant to that issue’.16

13 1999 (1) SA 718 (C) para 61 (Friedman JP and Brand J, following the analysis of Farlam AJ).
14 Criticised by David Bilchitz in 1998 Annual Survey of South African Law pages 814-815 (see too 1999
Annual Survey of South African Law page 684), but endorsed by DT Zeffertt, AP Paizes and A St Q Skeen,
The South African Law of Evidence (2003) 585.
15 DT Zeffertt 1991 Annual Survey of South African Law page 544 accepts the distinction between implied
and imputed waiver, but suggests that it would be more accurate to call the latter a ‘fictive’ or ‘deemed’
waiver.
16 John Henry Wigmore, Evidence in Trials at Common Law (revised by JT McNaughton, 1961), vol 8 2328,
cited amongst many other cases in S v Boesman 1990 (2) SACR 389 (E) 394g-h.

[20] The canon seems to us to be clearly right.  Where an accused charges
a legal representative with incompetence or neglect giving rise to a fair
trial violation, it seems to us most sensible to talk of imputed waiver rather
than to cast around to find an actual waiver.17  Even without an express or
implied waiver, fair evaluation of the allegations will always require that a
waiver be imputed to the extent of obtaining the impugned legal
representative’s response to them.  Rightly therefore, counsel on appeal
accepted that the advocate’s affidavit was admissible in assessing the
accused’s claims.
[21] The primary question is whether the failure of representation the
accused alleges in fact occurred.  The details of the accused’s complaint
are roundly denied by his legal representative.  To some extent, of course,
this is unsurprising, since his professional reputation is at stake, and there
is a natural incentive to refute the claim.  It will be a rare advocate indeed
who admits either coercing the accused or not informing him of material
consequences of trial-related decisions.18
[22] The assertion and counter-assertion are both on affidavit, and neither
deponent has been tested by cross-examination.  This need not however
leave an appellate court helpless.  The contest of two unprobed counter-
assertions can, in an appropriate case, be properly explored to establish

17 We therefore cannot endorse the reservations about the utility of the distinction expressed in 1998 Annual
Survey of South African Law pages 814-815.  Nothing in Kommissaris van Binnelandse Sake v van der
Heever 1999 (3) SA 1051 (A) paras 21-30 seems to us to impede this conclusion.
18 But see S v Majola 1982 (1) SA 125 (A), where counsel admitted not asking the accused whether he
wished to testify.

the truth.  And this court has the inherent power19 to develop if necessary
a mechanism to establish which of the accused or his legal representative
is telling the truth.  This could be done in an appropriate case by a
commission20 or other suitable proceeding.21
[23] But this is not in our view an appropriate case.  The question whether
such a procedure need be developed will arise only where the accused’s
allegations raise a real possibility that there was incompetence or that bad
advice was given or that misconduct occurred.  In the present case the
accused’s allegations do not in our view pass the minimum threshold.
They are so weak, contradictory and inherently improbable that we
consider they must be rejected on affidavit without further inquiry.  We say
this for the following reasons.
(a) The accused was not an unsophisticated or illiterate person.  On the
contrary, he was a well-educated man who had completed his schooling
at St John’s College in Mthatha before starting employment with the bank
in 1984.  At the time of the robbery, he had had more than 14 years’
service, and occupied a responsible position as the branch’s senior

19 Constitution s 173:
‘The Constitutional Court, the Supreme Court of Appeal and the High Courts have the inherent power to
protect and regulate their own process, and to develop the common law, taking into account the interests of
justice’.
20 In R v GDB [2000] 1 SCR 520, [2000] 184 DLR (4th) 577 (SCC), the Alberta Court of Appeal faced issues
of credibility and fact in a complaint about counsel’s conduct of a criminal trial which it could not conveniently
resolve itself.  It therefore appointed a commissioner to conduct an inquiry into specific factual questions.
The commissioner was appointed under a provision of the Canadian Criminal Code, but there seems to be
no obvious reason why a comparable procedure could not be developed in the exercise of the constitutional
power to protect and regulate the appellate process.
21 In S v Majola 1982 (1) SA 125 (A), where the complaint occurred after conviction but before sentence was
passed on the major count, this court envisaged that the trial judge himself could have heard the necessary
evidence (see pages 131-2 and 133H).

treasury custodian.  During his evidence in mitigation he appeared
articulate and proficient.  This does not mean that he could not have been
bullied, misled or misadvised: but it does bear on how likely it was that this
happened.
(b) The accused gave evidence and was cross-examined in a bail
application not long after his arrest, which led to his being granted bail.
He was thus aware of his right to testify, and indeed of the importance of
exercising it.  This does not mean that he may not have been
incompetently persuaded not to give evidence at the criminal trial, or
unjustly thwarted in a determination to do so, but again it bears on the
likelihood of that happening.
(c) The accused’s complaint against his advocate was serious.  It was not
only that his counsel had overridden his wish and a prior agreement that
he would testify, but that counsel had failed to inform him that an
inference could be drawn against him should he fail to testify and thus that
counsel had ‘misled’ him about the law.  Despite the magnitude of these
infractions, and their momentous consequences, the accused made no
mention of them on his first post-conviction court appearance on 10 July.
It seems to us improbable that if these claims had been true he would not
have raised them at this, the first available opportunity.
(d) Likewise, when he terminated the services of his counsel at the next
court appearance, before testifying in mitigation, the accused did not

explain his reasons for wanting ‘to talk on my own’, despite having an
opportunity to do so.  This renders his grave claims implausible.
(e) What is more, the accused presented his complaint in conflicting
terms: what he said in court and in his affidavit were materially different.
During his evidence in mitigation, he claimed only that though he had
wanted to testify, he was ‘advised not to speak’, and had followed this
advice, trusting his lawyer.  He made no mention of a prior agreement that
he would testify, no mention of being prevented from speaking, and no
mention of being misled by errant advice.  The first time these latter
claims arose was in the affidavit attached to his application for leave to
appeal, after sentence was passed.  The discrepancy casts further doubt
on their veracity and points instead to their inauthenticity.
[24] In short, we find it inherently improbable that a well-educated accused
with experience of testifying in previous proceedings would not either
insist on giving effect to a previous agreement to testify, or complain
immediately and in precise terms, at the first public opportunity, about
having been unjustly thwarted in his wish to do so.  There will no doubt be
cases in which legal representatives mislead, misadvise, bully, obstruct or
fail their clients; and courts will be astute to intervene when they occur.
We are also alert to the fact that allegations of misconduct or
incompetence
by
counsel
may
involve
seemingly
contradictory
allegations, and that criminal accused may be in a vulnerable position in
relation to their counsel.  But in the particular circumstances we have set

out we find it impossible to attribute even the minimum plausibility to the
accused’s claims, and not to accept the exposition of his advocate.  That
account accords with the accused’s first statement to the judge, which he
advanced while testifying in mitigation, namely that he was advised not to
give evidence, and that he accepted that advice.
[25] What his advocate’s exposition adds to the accused’s account is that
the accused accepted this advice only after being properly advised about
its possible consequences.  Given the express conclusion the judge
propounded in refusing to discharge the accused – that at the close of the
state’s case there was evidence ‘justifying an inference that he may have
been involved in the commission of the offence’ – we find it improbable to
a high degree that the accused’s advocate did not take the elementary
step of explaining to him the risk inherent in not testifying.
[26] As a matter of fact we therefore conclude from the circumstances
surrounding the complaint, without the need for further inquiry, that it is
unlikely that the accused was misadvised and misled as he claims.  We
conclude instead that his complaints against his counsel are to be
attributed to chagrin at the fact that he was convicted.22
[27] This conclusion makes it unnecessary for us to weigh further what
constitutes incompetence for fair-trial purposes, the extent to which the
conduct here alleged indeed showed incompetence, the degree to which

22 Compare S v Bennett 1994 (1) SACR 392 (C) 398H:
‘Regrettably one of the events which sometimes follows a conviction is recrimination from the convicted
person who seeks to attribute his misfortune at having been convicted not to his own guilt, but to his

a court considering the conduct of the trial must be deferential in
assessing counsel’s decisions and conduct, and whether the conduct
alleged resulted in a violation of the accused’s fair trial rights.23
[28] But we think fairness requires us to add two observations.  First, the
record of Mr Gagela’s conduct of the accused’s case offers no basis for
inferring any lack of proper competence, nor the want of basic integrity
and skill that the accused’s complaint imputes.  Second, as will emerge
from our discussion of the merits of the case against accused 1 and 2 that
now follows, we cannot fault the advice he gave.  That the trial resulted in
the accused’s conviction does not mean that the advice was wrong.
[29] To summarise: When an accused raises a fair-trial complaint involving
allegedly incompetent legal representation that raises a dispute about
what occurred between him and his lawyer, (a) the lawyer’s response to
the allegations is admissible in assessing the veracity of the complaint; (b)
if the allegations raise a real possibility that there was incompetence or
that bad advice was given or that misconduct occurred, it may be
necessary for appropriate mechanisms to be developed to establish the
facts; (c) in this case, the accused’s complaint is inherently contradictory
and implausible and must be rejected without further inquiry.

The case against accused 1 and 2 (Tandwa and Godolozi)

counsel.’
23 See S v Halgryn 2002 (2) SACR 211 (SCA) para 14.

[30] The circumstantial web in which the state sought to enmesh the two
accused bank employees was spun by the evidence of a number of bank
officials who explained the details of the branch’s security system and its
administrative protocols and procedures.  The senior officer at the bank’s
main control room responsible for the functioning and monitoring of the
computer-operated
central
‘Cosmos’
alarm
system,
Mr
Anthony
Oosthuizen, sketched how the branch connections were monitored from
Cape Town to check for alarms or after-hours activations.  In this way,
entries to the branch were monitored, while a microphone system for
sound surveillance also existed.  Three different types of alarm
functioned: one activated on entry; one on the vault door; and a third
inside the strong room or safe room. Distress alarms and wrong PIN
(personal identification number) codes could also be monitored.  The PINs
were so configured that certain entries constituted a hold-up alarm.  In
other cases a key had to be turned in a certain direction to avoid
activating the alarm.
[31] Oosthuizen testified that members of the branch carried panic buttons
on their persons which on activation registered centrally as a panic alarm.
The control panel or ‘digi-pad’ could be used on entry to send a distress
code.  Every entry and access was electronically recorded.
[32] The entries critical to the robbery were recorded in a printout to which
Oosthuizen
attested.

This
showed
an
exit
sequence
on
17 November 1998 at 19h14 next to the user number usually reserved for

the manager, indicating that the user activated the alarm on leaving. The
record indicated further that at 05h03 the same user entered the branch
and seven seconds later at 05:03:07 re-entered the pin code and
deactivated the cash vault door. At 05:03:21 he activated the codes back
into the digi-pad and deactivated the cash vault inside. At 07:26 a hold-up
alarm was received and at 07:28:57 there was a manual isolation of the
alarm which was reactivated at 07:29:16.
[33] The bank manager, Mr Mark du Plessis, testified that accused 1 was
the officer in charge of custodianship.  His job was to control and
coordinate functions of the branch, cash security and supply, and to
ensure cash holdings were maintained at low level, and to ensure regular
clearance of surplus cash via SBV (the bk’s dedicated security service).
Du Plessis related from bank records that on Tuesday 17 November 1998
accused 1 took a lunch break between 13:00 and 14:00, and signed off at
17:45.  The reason he gave for working late was ‘treasury’.
[34] But this did not accord with what accused 1 told the police investigators
in the tense hours of questioning after the robbery.  According to Inspector
Mxolisi Mqotyana of the Mthatha murder and robbery unit, accused 1 told
him that on the day before the robbery he had left work after 14h00 to
consult a doctor.  When the police established that accused 1 had in fact
only signed off work some four hours later, the discrepancy impelled the
investigators to intense scrutiny of the three bank employees’ versions.

[35] Du Plessis related that accused 2, the junior treasury custodian – who
was accused 1’s subordinate – signed off on the same day at 19:45 after
taking a lunch hour between 13:00 and 14:00.  His reason for working late
was also recorded as ‘treasury’.  Du Plessis explained that a time lock on
the strong room or safe door prevented access before effluxion of the
period specified at the time of locking.  The time lock operated
independently of the alarm system.  Both accused 1 and 2 were trained in
its use. They were responsible on a daily basis for actually setting the lock
to ensure that the strong room would be open at the required time the
following day.
[36] It is evident from Du Plessis’s evidence that branch policy was to keep
as little cash as possible. The branch had a target of R4.5 million which
was based on the average cash holdings for the month.  The amount
accumulated immediately before the robbery was more than double this.
Du Plessis insisted that this was unusual: no cash had been cleared that
week although it was the norm that cash would be cleared on a Monday
or a Tuesday.
[37] Further significant testimony was that accused 1 and 2 had completed
the strong room time lock register only until Monday 16 November 1998.
The register had not been completed for the crucial day preceding the
robbery, Tuesday 17 November.  What is more, accused 1 and 2 did not
sign the locking away register on that day.  This was even though it was in
existence when they left work on both days, and it was found in the

correct place on the morning after the robbery.  The mystery of these two
registers formed an intense focus of accused 2’s cross-examination.
[38] Ms Veronica Groom joined the branch only days before the robbery,
working with accused 1 and 2.  She testified that on Tuesday
17 November 1998 she noticed that the cash had not been cleared.
When she asked accused 1 why, he replied that they had been ‘very busy’
the previous day.  Accused 1 and 2 asked her to be at work at 07h00 the
next morning because there was still a lot of work to be done.
[39] Mr Mtutuzeli Sibindlana was the branch support officer in charge of
treasury and the security system, and superior to accused 1 and 2.  He
testified that accused 1 and 2 decided when a money clearance was
necessary: this was supposed to be done if the branch’s cash holdings
exceeded the daily limit of R4.5 million; though in cross-examination
Sibindlana conceded that it was not uncommon for an amount of the order
of R9 million to have accumulated in the bank.
[40] It was evident from Sibindlana’s account of the robbers’ conduct during
the kidnapping that they had already been primed about procedures in the
bank, who carried the keys, the details of the branch’s security system, its
link to Cape Town, and the panic buttons.  It is therefore clear – and was
not seriously disputed – that the robbers operated on inside information.
The crucial question was its source.  The finger of suspicion pointed
unavoidably at the three bank employees entangled in the robbery.  But it
emerged that the robbers had treated Sibindlana more harshly than

accused 1 and 2, by threatening to place a hand-grenade inside his
trousers, for detonation if he refused to cooperate.  The impression
formed by various state witnesses also was that Sibindlana appeared
more traumatised after the robbery than accused 1 and 2, whom the same
witnesses testified appeared relatively unscathed by the event.
[41] Less than a month before the robbery, the branch installed a new,
highly sophisticated alarm system. The robbers knew its functioning as
well as the alarm codes, even though the usual custodian was on leave.
It is also unavoidably significant that the robbery occurred on a day the
cash holding was at its highest and far above the average.  In their
positions respectively of senior and junior treasury custodian, the duties of
accused 1 and 2 included ensuring that cash holdings were at a low level
and that surplus cash was regularly cleared.  Although cash was normally
cleared either on a Monday or a Tuesday this did not happen that week.
The R9.6 million the robbers managed to plunder was well above the
branch target of R4.5 million.
[42] We must now consider the evidence of Dlamini, the accomplice
witness.  Dlamini testified that after one Jabulani Sando Nkobi
approached him in Johannesburg to take part in the robbery, he travelled
by kombi to Mthatha with Nkobi and one Oupa.  They arrived in Mthatha
in the early evening and went to a house in Northcrest.  They were met
outside by a person who introduced himself as ‘Khaya’ (the name of
accused 5). In court, Dlamini identified that person as accused 5.

[43] Dlamini testified that on entering they found a man addressing a group
of about 15 men, supplying information about the bank.  Dlamini testified
that accused 2 – whom he accurately described in his pre-trial police
statement as short, stout, dark-complexioned and bespectacled – was
that man.  After about ten minutes, accused 2 left in a maroon Golf.  This
was later established to belong to accused 1’s wife.
[44] Shortly thereafter Dlamini and all the other men left in different motor
vehicles to a house in Ikhwezi Township, Mthatha.  (The home of accused
2, where the hostages were in fact held, was in Ikhwezi.)  At that house
they took persons hostage and Dlamini again saw the maroon Golf. He
also saw accused 1 and accused 2, as well as a light-complexioned man,
whom he learnt ‘was also working at the bank’.  It is common cause that
this person was Sibindlana.
[45] Later, during the long night preceding the robbery, Dlamini said it was
accused 2 who was talkative, and ‘who had the most answers’.  Dlamini
testified that he, accused 7 and accused 8 guarded the hostages through
the night. The robbers were wearing balaclavas.  In the morning a call
came through to the cellphone of either accused 7 or 8, whereafter they
all left in the maroon Golf for town, where they met up with accused 3,
who was driving a white ‘ambulance’. They abandoned the maroon Golf
and the white ambulance took them to a homestead with a garage that
had two doors.  There he found Oupa and Nkobi, who gave him his share
of the loot in a red and white bag: it was R435 000.  At the trial, Dlamini

was shown photographs of accused 5’s parents’ homestead, which he
identified as the place where he received his share of the loot.  He
testified that accused 7 and 8 were also given their share, after which they
asked the Johannesburg robbers for a lift to Engcobo.  They obliged
before returning to Johannesburg.
[46] Dlamini’s credibility was central to the state’s case, and was the subject
of vigorous attack both in the trial court and on appeal.  The attack
centred on the inherent plausibility of Dlamini’s account, and on
contradictions internal to his evidence, and between his court testimony
and his prior statement to the police.  The trial judge, who had the
advantage of seeing Dlamini in person and at length, during a rigorous
cross-examination at the hands of various defence counsel (which covers
287 pages of the record), concluded after applying a cautionary analysis
that Dlamini had given credible and reliable evidence.  We find his
conclusion fully warranted.  Prototypically for an accomplice, Dlamini
tended to minimise his own involvement in the crime: he equated his role
to that of accused 7 and 8, whom the judge rightly described as being only
the ‘foot soldiers’ of the robbery.  But he proved an intelligent, secure,
confident, responsive and resourceful witness the credibility of whose
account unrelenting cross-examination only tended to reinforce.24  His

24 One defending counsel imprudently asked Dlamini, ‘Would you consider yourself to be an honest person?’,
to which he responded:  ‘My Lord I am not honest and that is why I am here today.’

account was largely coherent, and the contradictions relied on to criticise
it were relatively insubstantial.
[47] Even though counsel pointed out that Dlamini was arrested in
November 1999, after the trial had already started (creating the possibility
that the police put him up to all he said), it is quite apparent that his
account of the robbery was neither fabricated nor suggested to him; and
counsel on appeal rightly conceded that he was present during the events
he described and that he was an accomplice to the crime.  The question
therefore is not whether his evidence is wholly figmented, but whether and
to what extent the details implicating accused 2, 3, 5, 6, 7 and 8 are
reliable.  Given the inherent quality of Dlamini’s evidence, and the extent
to which his exposition found corroboration in other evidence, our general
conclusion is that they can safely be relied upon.
[48] Accused 1 elected not to testify or to call any witnesses in his defence.
Accused 2 came to the stand.  He denied any involvement.  He was
subjected to a sustained, meticulously prepared and tenacious cross-
examination, during which prosecuting counsel took care to establish that
he and accused 1 were jointly responsible for the monies in the safe, for
clearing them and for setting the locks on the safe doors.  It was also
established that accused 1 and 2 could not act independently of each
other since the junior treasury custodian (accused 2) could not depart
from bank procedures without the knowledge and acquiescence of his
senior (accused 1).

[49] In his evidence accused 2 was quite unable to explain satisfactorily why
he and accused 1 had not completed the strongroom time lock delay
register on the day preceding the robbery.  He testified that the register
went ‘missing’ on Monday 16 November 1998; yet it had been put to the
state witness that it went missing only on the Tuesday.  Although other
means of filling in this essential administrative record were readily
available – including a replacement register – the accused failed to use
these.   Instead, he claimed to have written down the crucial information
on a piece of paper (‘we filled in a blank paper’, he said).  Yet this was
nowhere to be found after the robbery – while bank officials readily
located the time lock delay register, uncompleted, and handed it to the
police.  Accused 2 testified that he enquired from Sibindlana about the
allegedly missing register on 16 November 1998.  This however
contradicted the version put to the state witnesses.  Groom testified that
though she was working closely with accused 1 and 2, no complaint was
made to her about the allegedly missing register.  The accused’s account
was rankly implausible.
[50] And why had he and accused 1 set the strongroom time delay lock to
open over an hour earlier than usual?  Initially accused 2 testified that he
had set the alarm in units of four hours, but changed this under cross-
examination when it became apparent that this did not square with the
actual time, or with when they left work (when he claimed they had set the
device).  Although accused 2 claimed to have set the time delay lock on

previous occasions to open an hour earlier than usual, the meticulously
recorded history of the settings contradicted this.  Here it is important to
note that the time lock disengaged at 05:45 instead of the usual time of
07:30.  This was the first time the lock had been set to open on a quarter-
hour.  That something most unusual had occurred was evident; yet
accused 2 was unable to account for it with any plausibility.
[51] Accused 2’s evidence was riven with other inconsistencies.  Initially, he
testified that the money was to be cleared on the Tuesday preceding the
robbery, but under cross-examination he first said there was no need to
have the cash collected – and then immediately changed this again. He
testified that the robbers arrived at about five or ten minutes after he
arrived home, having parted with accused 1. However, his evidence at the
bail application indicated that he had been home for approximately two
hours before the robbers arrived.
[52] The circumstantial evidence indicated overwhelmingly that when the
robbery took place things were profoundly amiss at the branch, in ways
that pointed to the guilty complicity of accused 1 and accused 2.  There
was an abundance of evidence calling for an answer.  Accused 2
attempted an answer – but found his credibility flayed in a relentless and
devastating cross-examination, by the end of which there was moral
certainty that he had been party to the crime.

[53] Accused 1 chose to call no witnesses, and to shun the witness stand
himself.  That was his constitutional entitlement.25  Yet his exercise of that
right does not suspend the operation of ordinary rational processes.26
The choice to remain silent in the face of evidence suggestive of
complicity must in an appropriate case lead to an inference of guilt.27  It is
true that, in contrast to the other accused, there was no direct evidence
implicating accused 1 in the robbery.  The state’s principal witness,
Dlamini, though mentioning accused 1’s presence among the hostages,
suggested no complicity on accused 1’s part.  Nor – because, no doubt,
they were arrested on the day of the robbery – were the first two accused
discovered with any loot.
[54] Yet those accused were jointly responsible for the money in the safe,
for clearing the cash, and for setting the locks.  For the two days before
the robbery, they did not complete the required documentation.  They set
the time lock to disengage over an hour earlier than normal, allowing the
robbery to take place before branch officials arrived for work.  The lock
was also set, inexplicably, to a quarter-hour, signalling a striking deviation
from the norm.  The amount of money accumulated, together with the
impression of various witnesses that accused 1 and 2 survived the
apparent ordeal rather too blithely (though the trial court rightly did not

25 C Theophilopoulos provides a thought-provoking analysis of the ‘right’ in ‘The So-Called “Right” to Silence
and the “Privilege” against Self-Incrimination: A Constitutional Principle in Search of Cogent Reasons’ (2002)
18 SAJHR 505.
26 Osman v Attorney-General, Transvaal 1998 (4) SA 1224 (CC) para 22; S v Boesak 2000 (3) SA 381 (SCA)
para 47; 2001 (1) SA 912 (CC) para 24.

consider either of these intrinsically decisive), add two further wafers of
suspicion adding to the pattern pointing to complicity.
[55] It is further true that the state’s inferential case rests entirely on
circumstance, and that no direct physical evidence links accused 1 to the
crime.28  We have therefore given careful thought to the possibility that,
despite the accumulation of suspicious circumstances, accused 1 might
have been guilty only of carelessness in carrying out his duties.  Yet it is
here that his choice not to give evidence becomes pivotal, for while it is
not inconceivable that the accumulated occurrences could have been
explained as sloppiness, they were not so explained; and it is the absence
of that explanation, plausibly advanced, that becomes decisive.
[56] In his testimony accused 2 tried to explain the lapses as oversights and
remissnesses, but failed categorically.  Since accused 1 chose not to
testify, we have no reason to believe that he would have fared any better.
While prosecuting counsel, Mr Carpenter, shredded the credibility of
accused 2, he had even more material against accused 1.  It was he who
was in a position to explain the deviations from procedure and the failure
to complete the registers, and it was he who could have told the court
whether accused 2 had acted solo, without his own participative
complicity.  Accused 1’s failure to supply answers on any of these aspects

27 ‘The accused cannot be compelled to give evidence but he must risk the consequences if he does not do
so’: Murray v DPP [1994] 1 WLR 1 (HL) 11C, per Lord Slynn.
28 Contrast Murray v DPP [1994] 1 WLR 1 (HL), where an adverse inference was drawn from failure to testify
when physical evidence (inter alia fibre and mud particles) linked the accused to the crime; and S v Boesak
2000 (3) SA 381 (SCA); 2001 (1) SA 912 (CC), where a letter bearing the accused’s signature was held to

inexorably strengthens the state’s case, because in the absence of
anything to gainsay it, the circumstantial web pointed overwhelmingly to
his complicity:
‘… if aspects of the evidence taken alone or in combination with other facts clearly call
for an explanation which the accused ought to be in a position to give, if an
explanation exists, then a failure to give any explanation may as a matter of common
sense allow the drawing of an inference that there is no explanation and that the
accused is guilty.’29
[57] The trial court correctly did not focus on the separate pieces of
evidence as fragments, but considered their totality.  In the face of the
damning circumstantial evidence suggesting the involvement of accused
1, van Zyl J was in our view correct to conclude that the evidence
established his guilt.
[58] Against accused 2 there was in addition the direct evidence of the
accomplice Dlamini, who said that he addressed the robbers’ pre-meeting.
That constituted a ‘dock identification’, the nature of which we discuss
later: for now we say only that we give his identification weight in the
context of the other evidence against accused 2, particularly since Dlamini
accurately described accused 2 in his police statement.
[59] Accused 2’s statements to the police on the day of the robbery also
implicate him.  According to inspector Mqotyana, whose evidence the trial
court rightly accepted, accused 2 gave the investigating team information

constitute prima facie proof.
29 Murray v DPP [1994] 1 WLR 1 (HL) 11G, per Lord Slynn, in whose judgment the other judges concurred.

implicating accused 3, and led them to the house of accused 3, eventually
putting them on the track of the other accused.  The trial court was not
deterred in concluding that accused 2 was guilty by the fact that in May
1998, six months before the robbery, he submitted an ‘explanation letter’
to the then branch manager, Mr Adams, recounting an approach to him by
a suspicious character who sought to involve him in preparations for a
robbery.  That accused 2 was so solicited, and that he rejected the
advance, does not diminish the strength of the evidence proving that on a
later fateful occasion he did indeed make himself party to robbing the
bank.
[60] We therefore fully endorse the trial court’s rejection of the evidence of
accused 2 and its conclusion that his disclaimers were not reasonably
possibly true.

The case against accused 3 (Tekula)
[61] The accomplice Dlamini testified that accused 3 was present at the pre-
robbery meeting at ‘Khaya’s place’ (the house of Khaya Gasa, accused 5,
in Northcrest) on the night of Tuesday 17 November 1998. According to
Dlamini, accused 3 was armed with a pistol.  When Dlamini arrived at
Northcrest at about 19h45 – having travelled with two other robbers from
Johannesburg – accused 3 was already there. The host, accused 5,
introduced them ‘by names one by one’.  Pressed in cross-examination
about the identity of the accused, Dlamini stated that ‘if you commit a

crime with a person you can never forget that person’. According to
Dlamini accused 3 was driving a Red Cross vehicle, which Dlamini
referred to as an ‘ambulance’.  Accused 3 testified that he was a house
manager at the Red Cross, Transkei, in the primary school nutrition
programme.  For his employment he drove a white Kombi which bore the
legend ‘Red Cross Society Transkei’, as well as red crosses on the front
and on its passenger and driver doors.  Indeed, accused 3 was arrested
late on the evening of Wednesday 18 November while driving this Red
Cross vehicle.  Dlamini’s evidence clearly hit the mark.
[62] It is also not without significance that accused 2 pointed out accused 3,
who took the police to look for accused 6 and to the house of accused 5,
both of whom were implicated in the robbery. In addition, an amount of
R60 000 was recovered at the home of accused 3 and at the home of the
mother of his wife (who was accused 4).  The money was de-clipped and
in bundles with rubber bands, as money was stored in the bank’s safe.
[63] In the face of this evidence, accused 3 advanced the version that he
obtained the cash on 17 November 1998 from his friend Mr Lisa Noah
(since deceased), whose life was being threatened, and that on the night
of the robbery he had gone in his Red Cross vehicle to Mthatha Mouth,
where he visited his uncle who performed a traditional ceremony for him.
The trial judge rejected this version as false beyond reasonable doubt.
His reasons are persuasive.  During cross-examination, accused 3 varied
his version, testifying that Noah gave him the money because Noah was

going to sleep at his girlfriend’s house. Initially he testified that the money
was found on him after he was tortured. He later testified that the money
was found when his clothes were being removed at the commencement of
the torture. He also testified that he had to move the money from his
house to his wife’s parental home because of the possibility of robbery.
[64] The only witness accused 3 called, his uncle Mr Milton Tekula,
contradicted his evidence in material respects. The trial court described
accused 3 and his uncle as unimpressive witnesses and in our view
correctly rejected their evidence as false wherever it conflicted with that of
the state, and concluded that it could not reasonably possibly be true.
[65] Dlamini also performed a ‘dock identification’ on accused 3, whom he
met before the robbery, and with whom he travelled after the robbery to
Tabase, where they received their share of the loot.  In the context of
Dlamini’s other evidence relating to accused 3, particularly the
‘ambulance’, we afford his dock identification credence.  Accused 3 was
therefore correctly convicted.

The case against accused 5 (Gasa)
[66] Accused 5 was arrested in the early morning hours of Thursday 19
November 1998, the night after the robbery. By this stage accused 1 and
2 as well as accused 3 and his wife were under arrest.  Acting on
information from accused 2, Mqotyana and Detective Sergeant Loyiso
Mdingi from the Mthatha murder and robbery unit went to his house in

Nyathi Crescent, Northcrest. On arriving they tried unsuccessfully to
attract a response from within and were eventually driven to ask the public
order policing unit to use teargas to gain entry (‘to obviate a situation,’
Mqotyana explained, ‘where we would be shot by people from inside’).
Mdingi testified that before searching he enquired from accused 5 (who
was with his girlfriend) whether there was anything untoward within:
accused 5 informed him that there was an amount of R37 550 in one of
the wardrobes, which, he said, his mother had lent to him to start a pizza
shop in a shopping complex.  Throughout the trial accused 5 maintained
this explanation.
[67] The police took accused 5 to his parental home in Tabase, and then
arrested him.  He told the police that he derived his income from running
two taxis and that he occasionally sold second hand motor vehicles
purchased from auctions.
[68] Acting on information supplied by accused 5’s brother, Mdingi (who was
the principal investigating officer in the case) proceeded on 31 December
1998 to accused 5’s family home, where he retrieved fragments amongst
ashes from a fire.
[69] Accused 5, when he testified, was also shown the photographs from
which Dlamini identified the place where the loot was shared.  Accused 5
confirmed that the homestead depicted was his mother’s shop at Tabase.
He denied Dlamini’s incriminating allegations, claiming he knew nothing of
the robbery and none of the accused before his arrest.

[70] Yet accused 5’s account of his whereabouts during the robbery strained
under implausibility.  Accused 5 stated that in the early evening of the
17th November 1998 at about 19h00 his two taxi drivers arrived to check
in the day’s takings.  When they left he watched television and went to
sleep. On the morning of 18 November, his sister Zandile awoke him to
tell him that she had received a call that their mother was ill.  They then
left for Tabase but found that his mother was not as ill as reported.  As for
the hubbub outside his house after the police arrived, he claimed to have
been utterly unaware of it until he detected ‘smoke’ inside.
[71] Yet accused 5 was unable to explain why, if he knew his movements on
the night of the 17th and the morning of the 18th, he gave no account of
them either in his bail application or in his evidence in chief, and why no
version at all was put in this regard to the state witnesses who implicated
him, particularly Dlamini.  Nor could he explain why until his own evidence
there had been no mention at all of Zandile.
[72] Accused 5 called his mother, Mrs Agnes Kholeka Gasa, and his sister,
Ms Zandile Gasa, as witnesses. His mother confirmed the loan to accused
5 but fared dismally under cross-examination, her account unravelling
swiftly under implausibilities inherent to it and contradictions with accused
5’s version.  Several times she failed to answer entirely, exposing her
evidence as born of family fealty.  The sister, who was called only to verify
the presence of accused 5 at his home on the night of the robbery, fared

similarly, contradicting her brother and making an altogether implausible
showing.
[73] The critical elements of the state case against accused 5 were his
possession of an unavoidably suspicious stash of cash (in declipped,
rubber-banded bundles), his failure to respond to obtrusive police
attempts to gain his attention on the night his house was surrounded,
coupled with his lame explanation for his conduct, plus – most centrally –
the incriminating evidence of Dlamini.
[74] Dlamini’s evidence wove a taut web around accused 5.  First, though he
was unable to take the police to the precise site of the pre-robbery
meeting in Northcrest (prosecuting counsel established that the house’s
intricate location would have made it hard for a stranger to re-locate after
a single visit), he stated that the host introduced himself as ‘Khaya’.  What
is more, he took the police to the scene where the loot was shared at
Tabase – which corresponded tellingly with the location of accused 5’s
parental home.  On the accused’s own version, he was indeed there on
the morning after the robbery, though Dlamini did not see him.  In these
circumstances we consider Dlamini’s identification of accused 5 as the
Khaya who hosted the pre-robbery meeting in Northcrest to be reliable,
and conclude that the state proved his complicity in the robbery beyond
reasonable doubt.

The case against accused 6 (Rozani)

[75] On Thursday 19 November, acting on information from accused 2,
Mqotyana and Mdingi, with Inspector Ohlsson Nceba Miti, went to various
localities in Mthatha looking for accused 6 but did not find him.  He was
eventually arrested on 8 December at a hotel in Melrose Arch,
Johannesburg, by Detective Inspector Wayne Kukard and Superintendent
Gerhardus Johannes Kruger of the Brixton murder and robbery unit.
Accused 6 was arrested with one Skumbuzo Aphane.  On their arrest the
police confiscated a cell phone as well as a green Honda Civic and a false
identity card (a BMW 328i was seized from Aphane).  At the trial the state
proved that the Honda was registered in the name of accused 6 on 2
December 1998, and that he had bought it just before for R56 000 cash.
[76] Kruger and Kukard thereafter questioned accused 6 and Aphane about
the robbery.  The admissibility of any statements accused 6 may have
made to them was contested.  Kukard and Kruger testified that during the
questioning Kruger made detailed notes of accused 6’s answers but that
this record was destroyed when Kruger’s office was sprayed with a fire
extinguisher (the state led evidence establishing the destructive effects of
this event).
[77] The state sought to rely on the statement given to Kruger as a
confession which it contended was admissible in view of the fact that
Kruger was a justice of the peace.  The trial court in these circumstances
decided after argument that oral evidence was admissible as to the
contents of a written confession which had been destroyed.  The court

ruled that Kruger was a commissioned officer capable of receiving a
confession and that oral evidence of the contents of the destroyed
confession was admissible.  In view of the abundance of other evidence
conclusively implicating accused 6, we refrain from addressing this
question.30  We therefore leave out of account Kruger’s evidence
regarding accused 6’s oral confession.
[78] The morning after the arrest of accused 6, Senior Inspector Van Olst of
the Brixton unit requested Captain Henning van Aswegen of the Pretoria
murder and robbery unit to undertake a pointing out by accused 6 in what
the witnesses referred to as the Transkei. The team accompanying Van
Aswegen consisted of Superintendent Henry Beukes, organiser; Sergeant
Bhuti Douglas Dlamini, interpreter; and Sergeant Zachareas Johannes de
Lange, photographer.  The same day, Van Aswegen and his team left
Johannesburg with accused 6.  They travelled to Mthatha via
Pietermaritzburg (where they spent the night) and Kokstad. On the way
accused 6 requested to call his girlfriend, Ms Nonzuzo Nontutuzelo
Mngcotana, which he did on Van Aswegen’s cellphone.
[79] Van Aswegen made detailed notes on the pointing out form.  Accused 6
made hand-written insertions on the same document, appending his
signature.  These indicated that he understood everything on the form
which had been translated to him in isiXhosa; that he agreed with the

30 In S v Tshabalala 1980 (3) SA 99 (A) the state did not adequately prove that the original confession was in
fact irretrievably destroyed or lost; secondary evidence was therefore not admissible, and the conviction was
overturned.

contents; that the information written on it was the truth; that he
understood his rights; and that the only person he wanted to contact was
his girlfriend.
[80] The photo album depicts accused 6 at all stages of the trip and all
points.  According to the notes, on arrival in Mthatha accused 6 pointed
out the Mthatha Standard Bank branch as the bank he and his
accomplices had selected to rob, followed by the explanation that ‘during
the planning of the robbery it was decided on this bank as the finger man
was employed there’.  A photograph shows accused 6 outside the bank
pointing to it (the trial court rightly rejected accused 6’s preposterous
suggestion that he was in fact pointing to his attorney’s offices).  Another
note with accompanying photograph records that accused 6 pointed out a
homestead in Libode, apparently belonging to a policeman called Ngcobo,
said to have been implicated in the robbery, where the robbers met some
four to five times to plan it.
[81] After the pointing out, on 10 December Van Aswegen’s team handed
accused 6 over to captain Khayalethu Gwayi of the Mthatha murder and
robbery unit, who proceeded to question accused 6 about the robbery.
Thereafter accused 6 was detained at the Idutywa police station. The next
day, 11 December 1998, he was taken to the Mthatha Magistrate’s Court
for his first appearance, and thereafter detained first at the Mthatha
central police station cells and then at the Wellington prison.  The trial
court, in our view correctly, found insufficiently plausible the accused’s

claims that Gwayi and others assaulted him before his first court
appearance.
[82] On 29 December accused 6 was booked out and taken to Mdantsane
police station by inter alia Gwayi, Mdingi, Mqotyana, Mithi and sergeant
Nongogo (who did not testify). These police officers took accused 6 to
Corona in search of his younger brother, Mr Zingisa Rozani.  Night had
fallen by the time this trip was undertaken. After the younger brother was
located, the police took the two to Zandukwana in the district of Libode.
There accused 6 pointed out a spot from which the police dug out a
bucket which contained money. Accused 6’s sister Ms Nomhlophe Sigodi
was present. Accused 6 was returned to Mthatha Central Police Station
where he was detained at around 02h00 on 30 December 1998. The next
day accused 6 was booked out and taken to the Standard bank where the
money was counted: it amounted to R91 580.
[83] Thereafter accused 6 was taken to the Wellington prison where he was
detained. In the evening, he was examined by Dr Lubanga as well as by
Sister Mhlalase. They recorded a number of lacerations and multiple
bruises over large parts of his body.
[84] A trial within a trial was held when the state sought to rely on
statements by accused 6 to members of the Mthatha murder and robbery
unit and the pointing out of the money at Zandukwana on 29/30
December 1998. The objection was that accused 6’s rights to a fair trial
had been violated and that any alleged statements were not made freely

and voluntarily. In this regard the defence alleged that accused had been
tortured and assaulted into submission.
[85] The state called Mr Mvelisi Elias Arosi, the head of Wellington Prison.
He testified that he was not on duty on the 30th of December 1998 when
accused 6 was admitted at Wellington prison. He stated that his deputy,
Siyla, who was on duty when accused 6 was admitted, would not have
admitted him had he had any visible wounds: the prison’s policy was that
they would not accept or admit any awaiting trial prisoner if he had visible
injuries.  That accused 6 was admitted (the state argued) must therefore
mean that he had no visible injuries on 30 December.
[86] The defence called Dr Lubanga to relate what he found when he
examined accused 6 during the evening of 30 December 1998. Sister
Mhlalase was also called to state her own findings when she examined
the accused that evening.
[87] At the end of the trial within a trial, the trial court ruled provisionally that
the pointing out on 29 December was admissible; but the trial judge
reversed this ruling at the end of the trial on the basis that to the
knowledge of the police officers in question, accused 6 had a lawyer at
that stage, with the result that the pointing out in the absence of his legal
representatives violated his right to a fair trial.
[88] The trial court made no finding on whether accused 6 was assaulted
before the pointing out.  Despite the evidence of Arosi about the prison’s
admissions procedures, we find it abundantly established that accused 6

was assaulted after the police booked him out of the prison.  The weight
to be attached to the procedures wanes in the face of the incontrovertible
evidence of Dr Lubanga and Sister Mhlalase, who documented the
injuries to the accused.  That they were inflicted by the police – principally
Mqotyana and Mdingi – in the course of their questioning of accused 6 is
an unavoidable inference.  We therefore find for this additional reason that
the statements accused 6 made on 29-30 December to the police are
inadmissible against him.
[89] It follows, in our view, for reasons we expand later in relation to accused
8, that accused 6’s pointing out of the buried bucket of money, together
with the discovery of the bucket itself, are inadmissible against him.  This
is ‘real’ evidence – in contradistinction to ‘testimonial’ evidence (such as a
confession or admissions) – but it is inextricably tainted with the blemish
of the police brutality that procured its discovery.  It is not fit for receipt in a
civilised legal proceeding.
[90] This finding makes it unnecessary for us to consider accused 6’s
explanation (which the trial judge rejected) for his possession of the
money in the bucket and his reasons for hiding it.
[91] What remains of the state case against accused 6 are his suggestive
access of affluence after the robbery (which he was unable to explain
plausibly), but far more significantly his prejudicial admissions to van
Aswegen and his team on 9/10 December during the pointing out trip to
Mthatha.  Accused 6 also made an incriminating statement to Gwayi in

Mthatha after being handed over to Gwayi’s team.  Those statements do
not constitute a confession to the robbery, and were not tendered as such.
Yet they tie the accused inextricably to its commission.  His attempts to
deny authorship of the incriminating statements, and to explain away what
was said to van Aswegen and to impugn their voluntary nature were far-
fetched and the trial judge rightly rejected them.  There is no reasonable
explanation for what the accused said to van Aswegen and Gwayi other
than that he was deeply implicated in the robbery.  With this corroboration,
we also accept Dlamini’s ‘dock identification’ of the accused.  His guilt was
established beyond reasonable doubt.

The case against accused 7 (Tshefu)
[92] Early on the morning on 11 December 1998 members of the Mthatha
murder and robbery unit with members of the Mdantsane murder and
robbery unit went to the home of accused 7’s girlfriend, Ms Nombasa
Primrose Ntaka, in Zone 5, Zwelitsha.  She took them to a flat in King
Williams Town where the police obtained information as to the
whereabouts of accused 7.  Gwayi and the members of his unit followed
this lead while detective inspectors Kayalethu Sidwell Mbelu and Luvuyo
Mapantsela, travelling in a separate motor vehicle, went with Ntaka the
police station in Mdantsane’s NU12 section.  Ntaka later led the police to
her parental home at Tolofiyeni.  On arrival she entered the house and

emerged with a bag full of money, with which the party returned to the
NU12 police station.
[93] There the police in effect confronted accused 7 with Ntaka and the
retrieved money, for Gwayi and the other members of his unit had in the
meanwhile found accused 7 at an address in Mdantsane and arrested
him.  They found him in possession of an unlicensed firearm with eight
rounds of live ammunition.  They then took him to the NU12 police station
in Mdantsane where Gwayi questioned him.  Mbelu and the Tolofiyeni
party subsequently arrived at the station with Ntaka and the money.  The
police testified that the confrontation pitched accused 7 into a
confessional and cooperative mode.  The police then took accused 7 and
Ntaka with the money to the East London branch of Standard Bank,
where it was found to amount to R304 565.
[94] The state proved that on 20 November 1998 – two days after the
robbery – Ntaka purchased a Jetta CLI motor vehicle for R46 000 in cash,
and that on 25 November, driving the same Jetta, accused 7 arrived at a
motor dealership to get a quote on a damaged Daewoo vehicle (which he
said was for his girlfriend), laying down an R8 000 cash deposit for
repairs.  The state further proved that on 28 November the Jetta accused
7 had been driving was towed into a repair shop after being in an
accident, and that on 30 November accused 7 paid R15 000 cash as a
deposit for its repair.  During the same transactions, accused 7 inquired

about purchasing a house for about R150 000, and was taken to view
one.
[95] The state called Ntaka to give evidence, but she proved refractory,
contradicting her police statement.  After a contested application the court
declared her a hostile witness whom the prosecutor was entitled to cross-
examine.  She testified that accused 7 was her boyfriend and that he
handed her an amount of R350 000 for safekeeping, but that this was in
October – before the robbery – and that the cash emanated from the taxi
association to which accused 7 belonged.  But her credibility was frayed
and the trial court rightly regarded her as discredited.
[96] Gwayi testified that accused 7 did not cooperate initially – but that when
during his interrogation Mbelu returned from Tolofiyeni with Ntaka and the
money, accused 7, on seeing Ntaka, buckled, apparently defeated, and
admitted his involvement, going on to implicate accused 8 and other
persons.  Defending counsel sought to cast doubt on the police account
and pointed to a number of contradictions between the various
policemen’s exposition of the turn-around.  The contradictions are in our
view insignificant.  That a traumatic confrontation occurred that led to a
dramatic turnaround seems evident to us.  The trial judge correctly found
the essential elements of the police version, which in the case of accused
7 was not tainted by allegations of violence, to be true.
[97] The case against accused 7 pivoted on his munificent acquisitions
(betokening an implausibly sudden access of affluence), the discovery a

huge stash of cash (again, de-clipped and rubber-banded into bundles),
and his self-incriminating statements to Gwayi after Ntaka’s arrival at his
interrogation.  We find those elements amply establish his guilt.  Accused
7 insisted that the cash retrieved was given to him for safekeeping by Mr
Mbuyiseli Robiyana, executive member of the taxi association for which
the accused was a taxi rank manager.  Although Robiyana came to testify
in support of this version, cross-examination revealed it to be specious
and unworthy of credence.  The trial judge correctly rejected it.
[98] The state also invoked the evidence of Dlamini, who testified that he
together with accused 7 and 8 guarded the kidnapped families through the
long night preceding the robbery.  The morning after, he and accused 7
and 8 were transported to a garage in a homestead in Tabase where they
received their share of the loot.  Accused 7 and 8 then requested a lift
from Tabase to Engcobo.  It is not without significance that Dlamini
testified that during the robbery accused 7 was wearing ‘a military type’
lumber jacket; when accused 7 testified, it emerged that he was a soldier
first in the Ciskei defence force and then South African National Defence
Force from 1985 to 1997.  Given the other incriminating evidence
implicating accused 7, we consider that Dlamini’s dock identification of
accused 7 adds further weight to the state’s case.
[99] We conclude that the guilt of accused 7 was effectually established.

The case against accused 8 (Ngubelanga)

[100] Accused 8 was apprehended on the morning of 24 December 1998 in
section NU15, Mdantsane. He was arrested by, amongst others, detective
inspectors Bonginkosi Kwinana and Lizo Elvis Mzimane of the Mdantsane
murder and robbery unit, and Mdingi and Mapantsela from the Mthatha
unit.  A fracas ensued.  Mapantsela’s spectacles were broken, Mdingi was
punched and the accused sustained injuries (particularly a bleeding
wound on his forehead).  The police said that the accused (whose right
hand was encased in a plaster of paris cast) was belligerent from the
outset, resisting arrest and assaulting the officers who had come to arrest
him.  The accused said the police assaulted him when he refused them
permission to search his house.
[101] After he was subdued and the house searched (nothing being found),
accused 8 was taken to the NU12 police station, where Gwayi and his
team from Mthatha questioned him.  It is not in dispute that the accused
was not warned of his rights at his arrest, though the police evidence was
that Mapantsela supplied the deficiency at the police station.  The police
witnesses claimed that there accused 8 became co-operative and
admitted to involvement, even informing them where his share of the loot
was – at Zinkomeni, Mdantsane.  So the party proceeded to Zinkomeni.
But nothing was found.  The party returned to the police station, where
there was further questioning.
[102] During the second round of interrogation the accused now apparently
said his share of the loot was at his home in Seymour, near Queenstown.

The police put him in the back seat of a vehicle.  Kwinana was driving,
with Mdingi in the front passenger seat.  Accused 8 was in leg irons.  He
had not been fully handcuffed because of the plaster cast on his right
hand. The child lock was engaged to prevent him from opening the door.
[103] At Seymour accused 8 took the police to a house which they searched
comprehensively – to the extent, on their own account, of demolishing a
corrugated iron toilet to its very foundations.  But again they found
nothing.  The next undisputed fact is that accused 8 was taken to the
Seymour police station, where Kwinana laid a charge against him of
attempting to escape from custody.  Gwayi was summoned and hastened
to the scene.
[104] Entry 747, which Gwayi made at 17h25 in the station’s occurrence
book, states that the accused ‘has shown suicidal tendencies by trying to
jump out of the police car’.  The entry proceeds to state that ‘fortunately’,
since the accused was partly handcuffed and wearing leg irons, ‘he could
not successfully escape’, ‘but however he did sustain some head and
whole body bruises’.  ‘He has not’, the entry proceeds, ‘been seriously
wounded’.  Finally, the writer adds that the entry has been made ‘solely to
safeguard any malicious allegations that might be levelled against the
whole Ministry of Safety and Security inclusive of the South African Police
Services’.
[105] Accused 8 gave a disturbingly different account.  He stated that at no
stage did he co-operate with the police at NU12, but that they assaulted

him and tortured him using a rubber tube and bucket of water.  He
testified that when the police found nothing in Seymour they took him to a
minor dirt road, where Mdingi took a nylon rope and tied him to the
vehicle.  He was then dragged for some distance.  Because of this
maltreatment, he informed the police that the money was at his cousin’s
house in section NU17, Mdantsane.
[106] The police, by contrast, claimed that a further interrogation followed at
Seymour police station at which the accused cooperatively volunteered
the further information.  It is common cause that the party proceeded to
NU17, Mdantsane, where after the accused instigated yet more diversion
and wild goose pursuits, he eventually indicated a house from whose
owner the police obtained telephonic permission to enter.  This they did by
breaking in.  Inside, accused 8 pointed out a black suitcase with brown
leather trim in the corner of a room. The police opened the suitcase and
found what they had been seeking:  money.  They also found a red and
white bag which contained an AK 47 rifle and an empty magazine.  The
money, when later counted at the bank, was found to amount to R176
000.  Accused 8 was taken to Mthatha Police Station.  He was never
charged with possession of the AK 47 rifle.  The police later confiscated a
large number of items from his house, as well as an Isuzu bakkie.
[107] Mdingi stated that on 25 December 1998 he took accused 8 to
Butterworth hospital for treatment.  Accused 8 was also at some stage
detained at the Wellington prison where a medical file was opened.  That

contained detailed notes of his injuries.  When he applied for bail on 13
January 1999 – nearly three weeks after the traumatic trip to Seymour –
the magistrate noted ‘for the record’ that at a distance of 5 metres he
could see ‘extensive bruising on the abdomen, the chest, the left elbow’,
plus ‘weal marks’ over ‘the whole of the back’.
[108] During the trial and on appeal the prosecution relied on the police
version plus the evidence of Dlamini, who as previously related testified
that he had met accused 8 in Northcrest and then spent the long night
together guarding hostages at Ikhwezi.  Dlamini testified that he, accused
7 and 8 stayed in the house the whole night (balaclavaed), and that they
left in the morning after a telephone call; and that after accused 7 and 8
had taken their share of the loot at Tabase they were given a lift to
Engcobo.
[109] Dlamini testified that accused 8 was wearing a black leather jacket at
the time. He pointed out accused 8 in court, saying he was wearing the
same leather jacket.
[110] During the trial the defence objected to the evidence of the pointing out
on the basis that it was not freely and voluntarily obtained. This
necessitated a trial within a trial.  The accused testified that he took the
police to the money under duress, after torture – but that in truth the cash
did not come from the robbery, but belonged to his taxi association.  This
version Robiyana’s testimony, invoked also by accused 7, was invoked to
cement, but the trial judge resoundingly rejected it.

[111] Though the trial court found accused 8 an unimpressive witness, it
concluded that his admissions during the pointing out procedure were not
made freely and voluntarily. We have no doubt that this ruling was correct.
The police account of the trip to Seymour and their dealings with accused
8 before and after would have been merely absurd if it did not provoke
such disquiet about the brutality, indiscipline and absence of scruple it
revealed.  The contradiction at the heart of the police version was that
even though the accused took them on repeated wild goose chases, in
which no money was located, he was nevertheless voluntarily cooperating
all along.  The implausibility at its heart was that despite sustained
preceding misinformation, the accused eventually took the police to the
money without the supervention of improper means.
[112] In its details, too, the police evidence lacked any veneer of credibility.
The police would have had the court believe that a semi-cuffed man with
an arm in plaster, restrained by leg-irons, seated in the back of a child-
locked car with two policemen in front, succeeded in opening the door at
speed and tumbling out in an effort to escape – all this, it is to be
remembered, while his disposition was and had been throughout one of
full cooperation.  And why, if he managed to exit from a car travelling
(according to the police) at a high speed, was he not much more seriously
injured?  The injuries the magistrate and the medical personnel recorded
give the lie to the version the police concocted about the accused’s
injuries.

[113] Despite ruling that the statements accompanying the pointing out were
inadmissible, the trial court admitted the real evidence (the money and AK
47) the procedure yielded.  The trial judge had regard to s 35(5) of the
Constitution:
‘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.’

Accepting in favour of the accused that the evidence was obtained in a
manner that infringed his rights under s 35(5), the judge concluded that its
admission would not render the trial unfair or be otherwise detrimental to
the administration of justice:
‘The evidence is real evidence which existed independently from the pointing out
made by accused no. 8. … it was common cause that the accused was in possession
of the money and he provided an exculpatory explanation for his possession thereof.
The inclusion of such evidence would not render the trial unfair within the meaning
thereof and on any of the aspects as contained in Section 35(3) which aspects are not
intended to be exhaustive. On the contrary, and especially in the light of the accused
being in a position of providing an exculpatory explanation for his possession thereof it
would in my view be detrimental to the administration of justice to exclude such
evidence.’

[114] A further important factor, the judge considered, was ‘the fact that the
evidence in question was physical evidence that existed irrespective of
the violation of the Constitution’:
‘[A]s stated in case of R v Collins [(1987) 33 CCC (3rd) 1 (SCC)], a Canadian decision,
such evidence will rarely operate unfairly for the reason alone that it was obtained in a
manner that violated the Constitution. It existed irrespective of the violation of the
Constitution and does not render the trial unfair.’

[115] On appeal accused 8 contends that the real evidence should be
excluded because it was unconstitutionally obtained, and that admitting it
rendered his trial unfair or was otherwise detrimental to the administration

of justice.  We find these contentions compelling.  As Scott JA recently
pointed out (in a judgment delivered after the trial court’s findings in the
present case), improperly or illegally obtained evidence was generally
considered admissible before 1994, so long as it was relevant to the
matter in issue.31   The interim Constitution did not contain an express
provision directed in this area. However, after it came into effect, courts
used their common law discretion to exclude evidence obtained in
violation of the Constitution.32
[116] The notable feature of the Constitution’s specific exclusionary provision
is that it does not provide for automatic exclusion of unconstitutionally
obtained evidence. Evidence must be excluded only if it (a) renders the
trial unfair; or (b) is otherwise detrimental to the administration of justice.
This entails that admitting impugned evidence could damage the
administration of justice in ways that would leave the fairness of the trial
intact: but where admitting the evidence renders the trial itself unfair, the
administration of justice is always damaged.  Differently put, evidence
must be excluded in all cases where its admission is detrimental to the
administration of justice, including the sub-set of cases where it renders
the trial unfair.  The provision plainly envisages cases where evidence

31 S v Pillay 2004 2 SACR 419 (SCA) at para 6 of his judgment (page 444).  The majority judgment in that
case, per Mpati DP and Motata AJA, excluded evidence obtained as a result of an illegal monitoring
operation.
32 S v Motloutsi 1996 (1) SACR 78 (C) (bank notes discovered during police search of the accused’s
premises without a warrant or permission, linking accused to crime, excluded on basis that deliberate and
conscious violations of constitutional rights should generally lead to exclusion of evidence in the absence of
exceptional circumstances); S v Mayekiso 1996 (2) SACR 298 (C); S v Hammer 1994 (2) SACR 496 (C).

should be excluded for broad public policy reasons beyond fairness to the
individual accused.33
[117] In determining whether the trial is rendered unfair, Courts must take into
account competing social interests.34  The court’s discretion must be
exercised ‘by weighing the competing concerns of society on the one
hand to ensure that the guilty are brought to book against the protection of
entrenched human rights accorded to […] accused persons.’35  Relevant
factors include the severity of the rights violation and the degree of
prejudice, weighed against the public policy interest in bringing criminals
to book.  Rights violations are severe when they stem from the deliberate
conduct of the police or are flagrant in nature.36  There is a high degree of
prejudice when there is a close causal connection between the rights
violation and the subsequent self-incriminating acts of the accused.37
Rights violations are not severe, and the resulting trial not unfair, if the

33 For an exploration of the considerations underlying these reasons, see Eric Colvin ‘Fairness and Equality
in the Criminal Process’ (2006) 6 Oxford University Commonwealth Law Journal 1.
34 Key v Attorney-General, Cape Provincial Division 1996 (4) SA 187 (CC) para 13 per Kriegler J for the
court:
‘In any democratic criminal justice system there is a tension between, on the one hand, the public interest in
bringing criminals to book and, on the other, the equally great public interest in ensuring that justice is
manifestly done to all, even those suspected of conduct which would put them beyond the pale. To be sure,
a prominent feature of that tension is the universal and unceasing endeavour by international human rights
bodies, enlightened legislatures and courts to prevent or curtail excessive zeal by State agencies in the
prevention, investigation or prosecution of crime. But none of that means sympathy for crime and its
perpetrators. Nor does it mean a predilection for technical niceties and ingenious legal stratagems. What the
Constitution demands is that the accused be given a fair trial. Ultimately, as was held in Ferreira v Levin
[1996 (1) SA 984 (CC)], fairness is an issue which has to be decided upon the facts of each case, and the
trial Judge is the person best placed to take that decision. At times fairness might require that evidence
unconstitutionally obtained be excluded. But there will also be times when fairness will require that evidence,
albeit obtained unconstitutionally, nevertheless be admitted.’
35 S v Lottering 1999 (12) BCLR 1478 (N) 1483C-D per Levinsohn J, Combrinck J concurring.
36 S v Lottering 1999 (12) BCLR 1478 (N); S v Seseane 2000 (2) SACR 225 (O) (the deliberate nature of
police conduct in not explaining the accused’s rights, part of an attempt to ‘trap’ the accused, justified
exclusion of the incriminating statements) (Pretorius AJ, Malherbe J concurring).
37 S v Soci 1998 (2) SACR 275 (E)

police conduct was objectively reasonable and neither deliberate nor
flagrant.38
[118] As we have pointed out, though admitting evidence that renders the trial
unfair will always be detrimental to the administration of justice, there may
be cases when the trial will not be rendered unfair, but admitting the
impugned evidence will nevertheless damage the administration of justice.
Central in this inquiry is the public interest:
‘So far as the administration of justice is concerned, there must be a balance between,
on the one hand, respect (particularly by law enforcement agencies) for the Bill of
Rights and, on the other, respect (particularly by the man in the street) for the judicial
process. Over-emphasis of the former would lead to acquittals on what would be
perceived by the public as technicalities whilst overemphasis of the latter would lead at
best to a dilution of the Bill of Rights and at worst to its provisions being negated.’39

[119] Of course the public interest in combating crime is substantial.  But in S
v Pillay, Scott JA – who dissented on the facts of that case, which
involved evidence uncovered as a result of an unauthorised search (the
warrant having been obtained on the basis of erroneous statements)40 –
pointed out that the admission of derivative evidence obtained in
circumstances involving some form of compulsion, or as a result of
torture, ‘however relevant and vital for ascertaining the truth, would be
undeniably detrimental to the administration of justice’.41

38 S v Lottering 1999 (12) BCLR 1478 (N) (the accused’s pointing out of evidence should be admitted even
though he had not been warned of his rights: constitutional rights violations only render the trial unfair (and
justify exclusion of evidence) if they are deliberate or flagrant).
39 S v Mphala 1998 (1) SACR 654 (W) at 657g-h, per Cloete J.
40 The majority, per Mpati DP and Motata AJA, considered that although the admission of the evidence in
question, obtained through an unauthorised surveillance operation, would not render the trial unfair, it should
be excluded as detrimental to the administration of justice: see S v Pillay 2004 (2) SACR 419 (SCA) at paras
90-98 of the joint judgment.
41 S v Pillay 2004 (2) SACR 419 (SCA) at paras 9 and 11 of the judgment of Scott JA (pages 447d and 448d-
e).

[120] This is such an undeniable case.  Though ‘hard and fast rules’ should
not be readily propounded,42  admitting real evidence procured by torture,
assault, beatings and other forms of coercion violates the accused’s fair
trial right at its core, and stains the administration of justice.  It renders the
accused’s trial unfair because it introduces into the process of proof
against him evidence obtained by means that violate basic civilized
injunctions against assault and compulsion.  And it impairs the
administration of justice more widely because its admission brings the
entire system into disrepute, by associating it with barbarous and
unacceptable conduct.  The cynical tenor of the lies the police advanced
here to explain the injuries the accused sustained in their custody (his
‘suicidal tendencies’) is disturbingly reminiscent of an earlier era.  We do
well to underscore the renunciation of that era not merely in principle, but
in police practice, and throughout the justice system.
[121] We accept that the public flinches when courts exclude evidence
indicating guilt:
‘At the best of times but particularly in the current state of endemic violent crime in all
parts of our country it is unacceptable to the public that such evidence be excluded.
Indeed the reaction is one of shock, fury and outrage when a criminal is freed because
of the exclusion of such evidence.’43

But in this country’s struggle to maintain law and order against the
ferocious onslaught of violent crime and corruption, what differentiates

42 S v Pillay 2004 (2) SACR 419 (SCA) at para 8 of the judgment of Scott JA (pages 446f-g).
43 S v Ngcobo 1998 (10) BCLR 1248 (N) at 1254G per Combrinck J (Hugo J and Niles-Duner J concurring)
(evidence of multiple murder and robbery, which appellant dug up in field behind his parents’ home in the
presence of police admitted even though police had not warned him of his rights and the consequences of
his pointing out).

those committed to the administration of justice from those who would
subvert it is the commitment of the former to moral ends and moral
means.   We can win the struggle for a just order only through means that
have moral authority.  We forfeit that authority if we condone coercion and
violence and other corrupt means in sustaining order.  Section 35(5) is
designed to protect individuals from police methods that offend basic
principles of human rights.  To admit the evidence of the recovered money
and the AK 47 in the circumstances of this case would render that
provision nugatory.  The evidence should therefore have been excluded.
[122] In view of the trial court’s reliance on S v Collins, it may be useful to
underscore the comments of Scott JA in Pillay44 about the Canadian
decisions.  Under s 24 of the Canadian Charter –
‘(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was
obtained in a manner that infringed or denied any rights or freedoms guaranteed by
this Charter, the evidence shall be excluded if it is established that, having regard to all
the circumstances, the admission of it in the proceedings would bring the
administration of justice into disrepute.”45

[123] In R v Collins, a police officer violated the accused’s rights by grabbing
him by the throat.  The accused had a bag of heroin in his hand, which the
state sought to admit. The Supreme Court of Canada held that a trial is
rendered unfair if the evidence is self-incriminating, such as a confession:

44 S v Pillay 2004 (2) SACR 419 (SCA) at paras 6-9 of his judgment (pages 444h-447h).
45 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the
Canada Act 1982 (U.K.), 1982, c. 11

‘The use of such evidence would render the trial unfair, for it did not exist prior to the
violation and it strikes at one of the fundamental tenets of a fair trial, the right against
self-incrimination.’46

But the Collins court drew a distinction between real and testimonial
evidence.  While it viewed testimonial evidence (such as a confession) as
undermining trial fairness, it expressed doubt that real evidence,
discovered derivatively as a result of unconstitutional conscription, could
render a trial unfair:
‘Real evidence that was obtained in a manner that violated the Charter will rarely
operate unfairly for that reason alone. The real evidence existed irrespective of the
violation of the Charter and its use does not render the trial unfair.’47

[124] It was this doctrine the trial judge invoked in the present case.  Since
the heroin in Collins was ‘real evidence’, the Court held that its admission
would not render the trial unfair.  (The heroin was however excluded on a
balancing of the other factors.)  Yet in later decisions, Canadian
jurisprudence has rejected a strict distinction between real and testimonial
evidence. In R v Burlingham,48 the Canadian Supreme Court excluded a
murder weapon found as a result of a confession obtained in violation of
the right to counsel.  The court held that the Collins distinction was
unfounded and that admitting the real evidence would operate unfairly.  It
noted that after Collins, it had ‘consistently shied away from the differential
treatment of real evidence’, and concluded that ‘the use of any evidence
that could not have been obtained but for the participation of the accused

46 R v Collins (1987) 33 CCC (3rd) 1 (SCC) at 45, 38 DLR (4th) 508 (SCC) at 526.
47 R v Collins (1987) 33 CCC (3rd) 1 (SCC) at 45, 38 DLR (4th) 508 (SCC) at 526.
48 R. v. Burlingham, [1995] 2 SCR. 206, 124 DLR. (4th) 7 at 25.

in the construction of the evidence for the purposes of the trial would tend
to render the trial process unfair’.49
[125] Furthermore, focusing, as the High Court did, on the classification of the
evidence (distinguishing between the nature of the evidence – testimonial
or real) is misleading, since the question should be whether the accused
was compelled to provide the evidence.  As the Supreme Court of Canada
noted in R v Stillman:
‘What has come to be referred to as "real" evidence will not necessarily fall into the
"non-conscriptive" category. There is on occasion a misconception that "real"
evidence, referring to anything which is tangible and exists as an independent entity, is
always admissible…the concept of "real" evidence without any further description is
misleading. It will be seen that, in certain circumstances, evidence such as the gun in
R. v. Burlingham, [1995] 2 SCR 206, 97 CCC (3d) 385, 124 DLR (4th) 7, may come
into the state's possession as a result of the accused's compelled participation or
"conscription" against himself. Thus, while the evidence is "real" it is nevertheless
conscriptive evidence.’50

[126] Though the US Supreme Court has not dealt specifically with physical
evidence obtained from a coerced confession, a number of its decisions
clearly assume that the exclusionary rule extends to physical evidence.51
The American Law Institute has observed that the rationale for the

49 R. v. Burlingham, [1995] 2 SCR. 206, 124 DLR. (4th) 7 at 25.
50 R v Stillman (1997) 113 CCC. (3d) 321 (SCC) at 353, 144 DLR (4th) 193 (SCC) at 224.
51 The probable reason is that until 1991, a coerced confession mandated an automatic reversal of sentence.
There was thus no need to consider whether the additional ‘real’ evidence should also be excluded.  A
number of cases, however, support the proposition that the Court assumed that real, as well as testimonial
evidence, falls within the exclusionary rule. See, e.g., Kastigar v. United States, 406 U.S. 441, 453 (1972)
(‘We hold that such immunity from use and derivative use is coextensive with the scope of the privilege
against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While
a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be
broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the
compelled testimony relates, affords the witness considerably broader protection than does the Fifth
Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot
subsequently be prosecuted. Its sole concern is to afford protection against being "forced to give testimony
leading to the infliction of 'penalties affixed to . . . criminal acts.'" Immunity from the use of compelled
testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the
prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the
testimony cannot lead to the infliction of criminal penalties on the witness.’).

exclusionary rule naturally extends it to preventing the introduction of
physical evidence derivatively obtained. The ALI Model Code observes:
‘In recent years ... the Supreme Court has made it clear that coerced confessions must
be excluded not only because of their unreliability, but also because the methods used
to obtain such confessions are intolerable and involve compulsion prohibited by the
Constitution... In view of this expanded basis for excluding confessions, the
justification for the automatic admission of all “fruits” becomes greatly attenuated. If the
use of an illegally obtained confession constitutes compelled self-incrimination, so may
the use of evidence derived from the confession. And, if the purpose of the
exclusionary rule is to deter unacceptable police behavior, then the exclusion of fruits
may also be necessary to achieve this deterrence. There would seem to be no rational
basis for distinguishing between products of an illegal search as opposed to products
of an illegally obtained statement in terms of applicability of the fruits doctrine.’52

[127] In this case, the police conduct violated a number of rights, including
the accused’s right to freedom and security of the person. This
guarantees the accused the right ‘(c) to be free from all forms of violence
from…public…sources’ and ‘(e) not to be treated or punished in a cruel,
inhuman or degrading way’ (Bill of Rights s 12).  And as a detained
person, the accused specifically had the right ‘not to be compelled to
make any confession or admission that could be used in evidence’ against
him (Bill of Rights 35(1)(c)).
[128] The rights violations here were severe since they stemmed from the
deliberate conduct of the police and were flagrant.  There was a high
degree of prejudice because of the close causal connection between the
violation and the subsequent discovery of the money and the AK 47.  It
did not therefore constitute admissible evidence.

52 Model Code of Pre-Arraignment Procedure 150.4, comment at 410-11 (American Law Institute,  Proposed
Official Draft, 1975), cited in, Yale Kamisar,’Response: On the “Fruits” of Miranda Violations, Coerced
Confessions, and Compelled Testimony’, 93 Michigan Law Review  929 (March, 1995) at 940-941.  The
California Supreme Court has similarly held that derivative real evidence is excluded under the United States
Constitution: People v. Ditson 369 P 2d 714, 727 (Cal. 1962), vacated as moot, Ditson v California 371 U.S.

[129] This brings us to the question whether the accused’s conviction can
stand in the light of the exclusion of the real evidence against him.  The
principal remaining evidence against him is Dlamini’s dock identification,
which – in contrast to the same witness’s identification of accused 2 – was
not reinforced by any preceding description of traits specific to the
accused.  Dock identification, as our previous allusions to it in this
judgment indicate, may be relevant evidence, but generally, unless it is
shown to be sourced in an independent preceding identification,53 it
carries little weight:54 ‘taken on its own it is suspect’.55  The reason is
apparent:
‘[T]here is clearly a danger that a person might make an identification in court because
simply by seeing the offender in the dock, he had become convinced that he was the
offender.’ 56

[130] In ordinary circumstances, a witness should be interrogated to ensure
that the identification is not in error.  Questions include –
‘what features, marks or indications they identify the person whom they claim to
recognise. Questions relating to his height, build, complexion, what clothing he was
wearing and so on should be put. A bald statement that the accused is the person who
committed the crime is not enough. Such a statement unexplored, untested and
uninvestigated, leaves the door wide open for the possibility of mistake.’57

541 (1963).
53 Dock identification was thus approached by the full bench in S v Bailey, unreported judgment of the Cape
High Court (case 215/2000) dated 31 August 2000 paras 24-28, quoting SE van der Merwe ‘Parade-
uitkennings, Hofuitkennings en die Reg op Regsverteenwoordiging: enkele grondwetlike perspektiewe’
(1998) 9 Stellenbosch Law Review 129 at 141 (if the state can convince the court that the dock identification
is based on observations that are independent of the observations from an inadmissible identification
parade, it can be admitted).
54 R v Masemang 1950 (2) SA 488 (A) 493, per van den Heever JA, Centlivres and Schreiner JJA
concurring.
55 S v Moti 1998 (2) SACR 245 (SCA) 257h (‘is op sigself genome verdag’), per Nienaber JA (Schutz and
Plewman JJA concurring).
56 Paragraph 52 of the official report Identification Procedure under Scottish Criminal Law, Cmnd 7096
(1978), cited in PJ Schwikkard and SE Van Der Merwe, Principles of Evidence (2nd ed, 2002) page 515.
57 R v Shekelele 1953 (1) SA 636 (T) at 638, per Dowling J, Price J concurring.

[131] Where the state relies solely on a dock identification, however, these
questions carry little weight.  This is because the witness can look at the
accused in the court – as happened in the present case, to the indignant
objection of the accused and their counsel. Under these circumstances,
dock identification is similar to a leading question.  As a result, in certain
circumstances it could carry no weight at all.58
[132] The question is whether Dlamini’s dock identification, standing alone, is
sufficient to establish beyond reasonable doubt that accused 8 was one of
the robbers.  After careful consideration, we have come to the conclusion
that in the circumstances of this case, Dlamini’s identification of accused 8
is reliable.  We say this for the following reasons:
(a) Given the overall quality and cogency of Dlamini’s evidence, the
possibility that he was maliciously figmenting the presence of any of the
accused can safely be excluded.  The sole question in relation to accused
8 is thus whether he may have been mistaken in insisting that he was one
of the robbers.
(b) Previous cases where dock identifications have been rejected have
generally involved fleeting preceding encounters.  This case is different.
Dlamini’s exposure in particular to accused 7 and accused 8, more than to
any of the other robbers, was far more than merely fleeting.  He had
extensive contact with the two over more than twelve hours.  He met them

58 S v Maradu 1994 (2) SACR 410 (W) 413j-414a, followed in S v Daba 1996 (1) SACR 243 (E) at 248, later
explained in Ebrahim v Minister of Justice 2000 (2) SACR 173 (W).

at the pre-robbery planning meeting in Northcrest.  Then he spent the long
night guarding the hostages in the same room with them.  Although the
robbers were wearing balaclavas overnight, the intimacy and intensity of
the engagement would have exposed to Dlamini details of the two men’s
gait, gestures and physical stature.  Indeed, as Dlamini pointed out in his
testimony, it was important for the robbers to know each other, and to be
able to distinguish their own from non-robbers.  This accounts for his
insistence that he could never mistake a person with whom he had
performed a criminal assignment.  What is more, the three travelled
together the next morning, without balaclavas, first to town, then to
Tabase and thence to Engcobo.  Dlamini’s opportunity for identification
was therefore extensive and protracted.
(c) Further, we find it significant that accused 7 and 8 were the only two
accused who came from Mdantsane, that they were close associates
(accused 8 testified that they were friends and had known each other
since 1983), and that both were involved in the taxi industry (accused 7
was a rank manager at Mdantsane, while accused 8 ran taxis, and was a
founder member, with Robiyana – the witness accused 7 called – of a taxi
association).  The other accused all came from Mthatha.   Yet it was
precisely these two whom Dlamini paired.  They were he said assigned
together with him as ‘foot soldiers’ to guard the hostages while the money
was seized at the bank.  It was these two who, after the loot was shared,
asked the Johannesburg robbers for a lift to Engcobo – from where,

presumably, they had made or planned to make joint arrangements for
further transport.  These connections of location, occupation and
association sharply reduce the risk that Dlamini made an erroneous
pairing.  Conversely they enhance the assurance that he correctly
identified accused 8, and correctly linked him to accused 7 (whom other
evidence conclusively establishes was involved in the robbery).
(d) Dlamini identified the leather jacket accused 8 was wearing in court as
that he wore during the robbery, but this in our view adds insubstantial
safeguard against the risk of error were the dock identification standing
alone.
(e) A more telling strand of evidence – we put it no higher than that – is
the sudden access of affluence that accused 8 exhibited immediately after
the robbery.  He went on an extensive spending spree, the fruits of which
the police confiscated after his arrest.  This he was unable to account for
with any plausibility in his evidence.  In cross-examination he tried
implausibly to increase his sources of income to explain the sudden
increase in his resources. His evidence about an invoice for furniture he
bought is implausible bearing in mind that the document was given to him
only just before his evidence – and it was generated only on 23 October
2001, shortly before he testified at the trial.  Even more telling in this
regard is that the document was not produced during accused 8’s bail
application.  Cross-examined about it, the accused became evasive.
Initially he testified that his wife bought the items except for four items the

police took. He contradicted this in his later evidence. He testified that
certain of the goods belonged to his girlfriend’s mother although this
evidence contradicts what was put to the state witnesses. That evidence
in turn is contradicted by his evidence in his bail application where he
testified that he bought the clothes.
(f) Accused 8 ran an alibi defence.  There was no onus on him to prove it.
But notable was a total lack of detail about his whereabouts on 17 and 18
December 1998.  He created an unfavourable impression on the trial
judge, who rejected his evidence as false beyond reasonable doubt.  We
consider that assessment sound.
[133] In these circumstances, we consider that Dlamini’s identification of
accused 8 as one of the robbers establishes his involvement beyond
reasonable doubt.59
[134] In the result, the appeals of all the appellants are dismissed.

E CAMERON

D MLAMBO

SPB HANCKE
JUDGES AND ACTING JUDGE OF APPEAL

59 Compare the approach in S v Bailey, unreported judgment of the full court of the Cape High Court (case
215/2000) dated 31 August 2000 paras 24-28 and in S v May 2005 (2) SACR 331 (SCA) paras 51 and
following.
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
Wednesday 28 March 2008

Status:
Immediate

Please note that the media summary is intended for the benefit of
the media and does not form part of the judgment of the Supreme
Court of Appeal

S v Tandwa and others [2007] SCA 34 (RSA)

In a judgment delivered today, the Supreme Court of Appeal
dismissed the appeal of seven accused against their conviction of
robbery.

The charges arose from the robbery of R9.6 million from the
Mthatha branch of the Standard Bank in November 1998 – at the
time the largest bank robbery yet recorded.  The robbery was an
‘inside job’, in that two of the convicted accused were bank staff
members employed as treasury custodians.

The seven accused were convicted by the Mthatha High Court
(van Zyl J) and sentenced to terms of imprisonment of between 17
and 20 years.

One of the bank employees who was convicted, who did not testify
in his own defence, charged the advocate who appeared on his
behalf with misconduct in that he had allegedly prevented the
accused from testifying and failed to inform him of the adverse

consequences that not testifying might have.  In rebuttal, the state
relied on an affidavit the advocate lodged, denying the accused’s
complaints.

In its judgment the SCA found that the accused’s complaint was
implausibly presented and contradictory and that it should be
dismissed as untruthful without further investigation.
The SCA found that this accused’s decision not to testify was
crucial to his conviction, in that the state proved a myriad of
suspicious circumstances at the branch, pointing to his complicity,
which he chose not to explain.  The accused’s choice not to testify
was his constitutional entitlement, but exercising the right to
silence was not without practical consequence.  The right to
silence did not suspend the practical operation of ordinary reason.

The SCA’s judgment also excluded evidence, which the trial court
had admitted, which the police had obtained by torture and
assault.  The SCA found that the evidence was not fit for receipt in
a civilised proceeding.

Finally, the SCA judgment considers the question of ‘dock
identifications’ – where a state witness identifies the accused not in
a preceding identification parade, but in court.  In the particular
circumstances of the case, there was sufficient other evidence
against each of the accused to provide guarantees for the dock
identifications, and the guilt of all seven had been proved beyond
reasonable doubt.

==ends==