THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 091/15

Not Reportable

In the matter between:

MADODA DOPLA NUBE                                                           APPELLANT

and

THE STATE                                                                               RESPONDENT

Neutral citation: Nube v The State (091/15) [2015] ZASCA 136 (30
September 2015)

Coram:
Bosielo, Pillay and Dambuza JJA, Van der Merwe and Gorven
AJJA

Heard:
26 August 2015
Delivered: 30 September 2015
Summary: Appeal against convictions and the sentences imposed for robbery
with aggravating circumstances, attempted murder, six counts of murder,
unlawful possession of firearm and ammunition – conspiracy and common
purpose – the appellant a member of a group which planned to commit a heist –
the appellant attending various meetings where the plan, time and method of
executing the heist discussed, refined and agreed upon – the appellant claiming
to have withdrawn from the conspiracy to commit the heist – confirmation of
court a quo’s finding that the appellant’s conduct did not amount to effective
dissociation from the conspiracy and common purpose to commit the heist.

________________________________________________________________

ORDER

On appeal from: Eastern Cape Local Division, Port Elizabeth (Goosen J
sitting as a court of first instance).

The appeal is dismissed.
________________________________________________________________

JUDGMENT
________________________________________________________________

Bosielo JA (Pillay and Dambuza JJA, Van der Merwe and Govern AJJA
concurring):
[1] The appellant and six others stood trial before Goosen J in the Eastern
Cape Local Division, Port Elizabeth charged with a number of offences being
robbery with aggravating circumstances as defined in s 1(b) of the Criminal
Procedure Act 51 of 1977 (CPA), and read with the provisions of s 51(1) and
Part 1 of Schedule 2 of the Criminal Law Amendment Act 105 of 1977,
statutory conspiracy with, or, procurement of other persons to commit robbery
with aggravating circumstances (as defined in s 1(1)(b) of the CPA) (in
contravention of s 18 of the Riotous Assemblies Act 17 of 1956), the statutory
unlawful possession of firearms, the statutory unlawful possession of a fully
automatic firearm, the statutory unlawful possession of ammunition, three
counts of attempted murder, six counts of murder and three counts of theft of
motor vehicles which were used in the commission of an attempted heist of an
armoured vehicle carrying liquid platinum.

[2] At the end of the trial, the appellant was found guilty of robbery with
aggravating circumstances, one count of attempted murder, and six counts of
murder. He was sentenced to an effective term of 23 years’ imprisonment. The
appellant is appealing against his convictions and sentences with the leave of
the court below.

[3] The trial court delivered a comprehensive and detailed judgment dealing
with all the evidence which was led at the trial. It will serve no purpose to repeat
that exercise. This is more so because to a large extent the background facts are
common cause. I will only refer to those parts of the evidence which the
appellant disputed and those which illustrate the role which he played from the
beginning of the conspiracy until the day when the heist was foiled by the
police, on 8 November 2011.

[4] The following facts are common cause: the appellant was a member of a
syndicate which had planned to rob Brink Security of liquid platinum whilst it
was in transit; to facilitate their planned heist they had various meetings
between August and November 2011 with one Constable Mudau (Mudau), who
had been employed by Brink Security as a driver and who, unbeknown to the
syndicate, was an undercover agent under the supervision of Colonel Mayana
(Mayana); this undercover operation was authorised by the Director of Public
Prosecutions in terms of s 252A of the CPA; all the meetings between Mudau
and members of the syndicate were video-taped and recorded; the appellant
attended all the meetings between Mudau and members of the syndicate where
the plan of the robbery was discussed, refined and finally adopted save for the
brief period in October 2011 when he was detained in prison.

[5] It is furthermore common cause that: the appellant was not only an
integral part of the group planning the heist with Mudau but featured
prominently as the brain trust behind it; he was not supposed to participate
actively in the actual heist as his role was to be on the freeway to do the
reconnaissance of the Brink’s vehicle from the airport and report its progress to
the members of the syndicate who were going to execute the heist; on 8
November 2011, the other members of the syndicate dressed as road-workers
took up their respective positions as planned at the railway crossing at
Stephenson Road, Deal Party ready to execute the heist; the planned heist was
foiled by the members of the National Intervention Unit (NIU) who had been
deployed at the crime scene with the specific purpose to foil the heist; some
members of the syndicate made off with drums which they thought contained
liquid platinum; others were fatally wounded in the wild shoot-out which
ensued with two civilians shot and killed in the cross-fire.

[7] Although the appellant admitted to being a member of the syndicate and a
party to the conspiracy to rob the Brink’s vehicle of liquid platinum, he raised
as his main defence that he had effectively withdrawn and thus dissociated
himself from the joint criminal enterprise on 1 November 2011. His stated
reason for withdrawing is that it was mentioned for the first time at this meeting
that a bomb was going to be used during the heist. He conveyed his intention to
withdraw from the planned heist to only one member of the syndicate. Notably,
he attended a meeting between Mudau and the syndicate on 7 November 2011,
where the plan to execute the planned heist was finalised. Importantly, it is at
this meeting that it was decided to execute the heist the next day, 8 November
2011.

[8] In amplifying his defence of dissociation, the appellant denied that he was
ever at or near the crime scene on 8 November 2011. Essentially, he raised an
alibi to the effect that at the time he had taken his friend to a place where he
wanted to buy motor vehicle parts and further that later in the day he went to see
his child at Ferguson Road in New Brighton where he spoke to a traffic officer
called Mbulelo Ngwenze (Ngwenze). He testified that as evidence of his
withdrawal he had reported the planned heist to a police officer, Derick
Roderick Grootboom (Grootboom) on 7 November 2011. The appellant called
both Grootboom and Ngwenze as his witnesses.

[9] Grootboom testified that at around midday on 7 November 2011, he
received a call from a private number from a person who did not identify
himself. However, because he knew the appellant, he could make out from the
caller’s voice that it was him. Although he could not remember exactly what the
appellant said, he testified that it was to the general effect that ‘there would be
an incident going down in Deal Party tomorrow’ and ‘I will discuss details
again with you’. In cross-examination, he testified that the appellant never
furnished him with any further details. Of importance, he testified that on the
morning of 8 November 2011, he went to Stephenson Road, Deal Party where
the heist was to take place with some police officers. Whilst there, the appellant
called him and indicated that he was on the freeway and that the Brink’s truck
had just passed him. When the appellant’s counsel suggested to him that he
might have misunderstood the appellant as what the appellant said to him was
that the Brink vehicle, and not the appellant was on the freeway, Grootboom
responded emphatically that ‘from the conversation I could derive that both
were on the freeway because he indicated that the vehicle is passing him now’.

[10] Ngwenze testified that he knew the appellant very well. He testified, in
short, that he heard over the radio, whilst doing patrol duties that morning that
there was a shoot-out between police and robbers. He then went to the scene at
approximately 10 o’clock and the heist was over. Later that day after he had left
the crime scene, he saw the appellant in his vehicle holding his baby on
Ferguson Road in New Brighton. He then stopped and told the appellant about
what he had seen at the robbery scene. He estimated that it could have been
around 12h30 when he spoke to the appellant.

[11] The trial judge dismissed the appellant’s defence of dissociation. He
found that the appellant’s version that he had told accused 5 after the meeting of
1 November 2011 that he was withdrawing from the conspiracy because a bomb
was going to be used was contradicted by the transcript of the recorded
meetings which shows clearly that the use of a bomb had already been raised at
an earlier meeting on 13 September 2011, where the appellant was present.
Importantly, the trial judge found the appellant’s subsequent behaviour after the
meeting of 1 November 2011, to be inconsistent with his claim that he had
effectively withdrawn from the conspiracy to commit the heist. Hence the
conviction.

[12] Stripped to its bare essentials, the argument before us was confined to the
crisp question whether the trial court erred in finding that the appellant’s action,
viewed holistically, did not amount to dissociation from the planned heist.

[13] Counsel for the appellant agued in the main that the trial court confused
conspiracy by members of the syndicate to commit the heist, with the eventual
commission of the heist based on common purpose. However, she conceded,

correctly in my view, that because members of the syndicate including the
appellant, had agreed on the commission of the offence, the statutory crime of
conspiracy to commit robbery had been proved.

[14] Regarding common purpose in committing the heist with his co-
conspirators, she submitted that the appellant should not have been convicted as
it was common cause that the appellant was not at the crime scene during the
commission of offence.

[15] On the other hand, the respondent’s counsel submitted that the conviction
of the appellant by the trial court is fully supported by the proven evidence. He
submitted that it is clear from the evidence of Mudau, the undercover agent,
which is fully corroborated by the transcripts of the meetings held between
Mudau and various members of the syndicate, including the appellant that since
his involvement in the planning of the heist in early August 2011, the appellant
was not only an integral part of the plan to rob Brink’s Security of liquid
platinum, but he was in fact pivotal to the entire scheme. He argued further that
the appellant’s subsequent conduct, after the meeting of 1 November 2011, of
attending another meeting of the syndicate on 7 November 2011 where the plan
to execute the heist was finalised, is subversive of his defence of dissociation. In
conclusion he contended that the appellant’s presence on the freeway where the
Brink’s Security vehicle was going to travel from the airport as per the
agreement with the syndicate is further proof of his continued association with
the syndicate’s planned heist.

[16] Regarding the telephone call made by the appellant to Grootboom on the
day before the heist, the respondent’s counsel submitted that the trial court was

correct in finding that it was not sufficient to support the defence of dissociation
as the appellant said too little about the planned heist to be of any assistance to
the police. In other words, it was so vague and bereft of the necessary details to
enable the police to know what was happening where, when, how and by whom.

[17] Regarding the appellant’s assertion that he was not on the freeway on 8
November 2011, the respondent’s counsel submitted that this was effectively
refuted by the evidence of Grootboom, his own witness, who testified, contrary
to the appellant’s version, that the appellant called him on his cellular phone on
the morning of 8 November 2011 to tell him that he was on the highway and
that the truck with platinum had just passed him.

[18] I have already indicated above that the appellant’s counsel conceded that
conspiracy to commit an offence had been proved when the syndicate agreed
early in August 2011 to commit the heist and that the appellant could have been
properly convicted on conspiracy. It suffices to state that the appellant’s conduct
falls squarely within the legal parameters of conspiracy as authoritatively
enunciated in S v Alexander & others 1965 (2) SA 818 (A) at 821; S v Cooper
& others 1976 (2) SA 875 (T) at 879B-F. See Snyman: Criminal Law, 4th
Edition at p292.

[19] I now turn to deal with whether the appellant’s conduct can sustain his
defence that he had effectively withdrawn or dissociated himself from the
conspiracy and continuing common purpose with the syndicate to commit the
heist on 7 November 2011.

[20] It is trite that this question is a factual one to be answered with reference
to the evidence led and the role played by the appellant. This requires the court
to evaluate the entire mosaic of the evidence presented, to determine if the
proven evidence is such that it can sustain a conclusion that the appellant did in
fact withdraw from the planned heist. See S v Thebus & another 2003 (6) SA
505 (CC) para 44.

[21] This Court enunciated the test for dissociation in S v Nduli & others 1993
(2) SACR 501 (A) at p504d-e as follows:
‘Dissociation consists of some or other form of conduct by a collaborator to an offence with
the intention of discontinuing his collaboration. It is a good defence to a charge of complicity
in the eventual commission of the offence by his erstwhile associate or associates (see S v
Nomakhlala & another 1990 (1) SACR (A) 300 (A) at 303g-304d; S v Nzo & another 1990
(3) SA 1 (A) at 11H-I; S v Singo 1993 (2) SA 765 (A) at 771E-773E). The more advanced an
accused person’s participation in the commission of the crime, the more pertinent and
pronounced his conduct will have to be to convince a court, after the event, that he genuinely
meant to dissociate himself from it at the time. It remains, I tend to think, a matter of fact and
degree as to the type of conduct required to demonstrate such an intention’.

[22] This Court expounded the salutary approach further in S v Musingadi &
others 2005 (1) SACR 395 (SCA) at para 35 as follows:
‘What may be gathered from our case law, however, is that not every act of apparent
disengagement will constitute an effective disassociation. Compare Snyman Strafreg 4th ed at
267-9. It appears that much will depend on the circumstances: On the manner and degree of
an accused’s participation; on how far the commission of the crime has proceeded; on the
manner and timing of disengagement; and, in some instances, on what steps the accused took
or could have taken to prevent the commission or completion of the crime. The list of
circumstances is not exhaustive. To reduce this composite of variables to a workable rule of
law may be artificial, even unwise.’
The court went further and stated at para 39 that:

‘The greater the accused’s participation, and the further the commission of the crime has
progressed, then much more will be required of an accused to constitute an effective
disassociation. He may even be required to take steps to prevent the commission of the crime
or its completion. It is in this sense a matter of degree and in a borderline case calls for a
sensible and just value judgment.’

[23] In my view, the following pieces of evidence are in summary destructive
of the appellant’s defence of withdrawal and dissociation from the common
purpose to execute the heist: his untruth that he heard about the use of a bomb
for the first time on 1 November 2011, whilst the transcript shows this was
discussed at a meeting on 13 September 2011 already where he was present; his
continued attendance of the meetings of the syndicate in particular the one on 7
November 2011 where the plan for the heist was further refined and adopted;
his failure to tell the syndicate that he was withdrawing from the conspiracy; his
denial, which has been proved to be wrong by Grootboom, that he was on the
freeway on 8 November 2011, the day of the heist; and his unexplained failure
to disclose sufficient information pertaining to the planned heist which would
have allowed Grootboom to foil it.

[24] In the circumstances, I am of the view that the trial court was correct in
finding that the appellant’s conduct did not amount to effective dissociation
from the planned heist. It follows that there are no grounds on which this Court
can interfere with the appellant’s convictions by the trial judge.

[25] The appeal against the sentences was largely dependent on the success of
the appeal against the convictions. No submissions were advanced at the
hearing on any other aspects. No misdirections were identified and nor were

submissions made that any of the sentences, or their cumulative effect, was
startlingly inappropriate. I can find no basis to interfere with the sentences.

[26] In the result, the appeal is dismissed.

________________
L O Bosielo
Judge of Appeal

APPEARANCES:

For Appellant:

L Crouse (with her K Saziwa)

Instructed by:

Legal Aid SA, Port Elizabeth

Legal Aid SA, Bloemfontein

For Respondent:

M L Le Roux

Instructed by:

Director Public Prosecutions, Port Elizabeth

Director Public Prosecutions, Bloemfontein