S v Mbatha

• Jurisdiction: South Africa
• Judge: Mkhize AJ
• Judgment Date: 15 January 2009
• Docket Number: 69/08
• Court: Transkei Division
• Hearing Date: 15 January 2009
• Citation: 2009 JDR 0051 (Tk)

Mkhize AJ:

1.

The Seven accused namely;

(I)

Sipho Mpiyomndeni Mbatha , a 36 year old male of Ulundi.

(II)

Thembinkosi Celumbuso Mvubo, a 38 year old male of Durban.

(III)

Patrick Sibongiseni Simelane, a 29 year old male of Middleburg.

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Mkhize AJ

(IV)

Lama Ephriam Navess, a 38 years old male of Middleburg.

(V)

Sam Sipho Leshaba, a 41 year old male of Middleburg.

(VII)

Joyce Tukamelo, a 45 year old female of Maluti.

(VIII)

Seroke Kortjas, a 34 year old male of Maluti.

Are facing three counts of

Count 1. CONSPIRACY TO COMMIT HOUSEBREAKING AND THEFT

IN THAT steal from sometime prior to 10 August 2007, the exact date

Unknown and at or near Mthatha the accused unlawfully and intentionally conspired with one another to aid procure the commission of or to commit the offence of housebreaking with the intent to and theft.

Count 2. HOUSEBREAKING WITH THE INTENT TO STEAL

IN THAT from sometime prior to 10 August 2007 at or near Mthatha Boxer

Store in the district of Mthatha, the accused did wrongfully and intentionally break and enter the premises of Boxer store with the intent to steal.

Count 3. THEFT

IN THAT upon or about 10 August 2007 at near Mthatha in the district of Mthatha, the accused did wrongly fully and intentionally steel the amount of

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Mkhize AJ

R253 802-20, the property or in the lawful possession of Boxer Super stone and or Xolani Nimrod Qushu.

The state called the following witnesses, Tyelovuyo Nkoshubane. He stated that he was employed by Boxer Cash& Carry as a Receiving Manager. On the 10th August 2007 he opened the store in the morning. He was not responsible for closing the shop on the 9th August 2007. The shop had an alarm system and he does not know whether it was activated on the 9th of August 2007. When he entered the shop the keypad was not functioning. He found the padlocks of the front door on the ground. He used the entrance to the receiving bay. He got into the shop and inspected the office, there was nothing wrong in the office. He telephoned the Branch Manager to report that the shop had been broken into. The Branch Manager arrived shortly and he telephoned the police who arrived immediately. They inspected the shop, how it was broken into. The safe had been damaged with a grinder.

[2]

The wall in the bakery section had been pushing outside, there was a whole of about 40cm square. He does not know any of the accused persons before Court. There was a Security guard who was on duty on the night of the 9th August 2007.

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[3]

Mr Xolani Nimrod Gxulu, was employed as a branch Manager of Boxer Cash & Carry, he was called by Mr Nkashubane to the shop. He found the cash office doors were opened. He called the Manager for the bakery. He found that the extractor fan had been removed. The Surveillance cameras were off.. There was a whole on the side of the safe, the door of the safe was opened. The amount of R 253 803-20 had been taken from the safe. It was in two bags namely a big green bag used by Fedility for Banking. After the house breaking, he saw the green bag in the offices of the organized crime which was the same bag that had been taken from the safe.

[4]

He received from the organized crime the amount of R 201 000 on the 10th August 2007. The Manager had been put in the safe on the 9th August 2007 was Xolelwa Peter. He does not know all the accused before Court. He does not know how much was the damage as everything was done by Head Office. He signed for the return of the stolen money from the Police. Xolelwa Peter stated that on the 9th August 2007 he checked the money and found it to be an amount of R 253 802-20. The money was in the white Fidelity bag and other in

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Mkhize AJ

the green bag. It was put in the safe. He saw the Fidelity empty bag lying in the offices at her place of the employment. She saw the green bag at the offices of the police. It was the same bag used to put money. She does not know all the accused before Court.

[5]

Constable Mfundo Siziba as the member of SAPS stationed at Mount Frere. On Friday the 10th August 2007 at about 4hrs30 minutes he was in the Patrol Van with Inspector Goodwill Somi. They saw a Toyota Corolla vehicle with registration letters and numbers NO 2489 next to FNB in Mount Frere. They stopped about 10metres away from the Toyota Corolla vehicle and nobody came out from the vehicle. They were using a Police Van a Double Cab with Police Lights on top. The Toyota Corolla vehicle sped away and they chased after it. They put the Police blue lights and it stopped about 200m away. The Toyota Corolla vehicle stopped and the driver came out and rushed to the police vehicle. It was accused no 1 who was the Inspector in the SAPS. He produced his appointment certificate. We told him we wanted to search their vehicle. He gave us permission to do so. They were four passengers in...