S v Mbuli

• Jurisdiction: South Africa
• Judge: Marais JA, Zulman JA and Nugent JA
• Judgment Date: 08 June 2002
• Citation: 2003 (1) SACR 97 (SCA)
• Docket Number: 422/2001
• Hearing Date: 23 May 2002
• Counsel: M R Hellens SC for the appellant. F W van der Merwe for the respondent.
• Court: Supreme Court of Appeal

Nugent JA:

[1] First National Bank has a banking outlet (it was referred to in the evidence as an 'agency') in a shopping centre in the Pretoria suburb of Waverley. (For convenience I will refer to the outlet as 'the bank'). Within minutes of opening for business on the morning of H 28 October 1997 the bank was robbed of R15 039,82. The amount might have been larger but for the fact that the bank's stock of money for the conduct of business on that day had yet to be delivered at the time the robbery occurred. I

[2] At least three men participated in the robbery. (The evidence does not exclude the possibility that one or more accomplices remained outside the bank while the robbery was committed.) One of the three men who committed the robbery was wearing a blue overall, at least two had handguns, and one also had a hand grenade. The money that was J

Nugent JA

stolen, some of which was in canvas bags with the name of the bank A printed on them, was placed in a blue canvas bag and the robbers fled.

[3] Shortly after the robbery two police officers stopped the appellant's motor vehicle in the vicinity of the bank. The appellant was driving the vehicle and two men were in the vehicle with him. The blue canvas bag containing money that had been stolen from the bank was in the vehicle, as were two pistols. One belonged to the appellant; the B other to one of the passengers. One of the police officers (the other had died by the time the matter came to trial) said that a third pistol, a blue overall, and a hand grenade were also in the vehicle. He said that all the pistols were fitted with magazines and their hammers were cocked, and that the two passengers had holsters clipped to their C belts. None of the appellants volunteered any explanation to the police for the presence of the items in the vehicle.

[4] The three men were arrested and arraigned before a regional magistrate and two assessors with the commission of various offences. D They were all convicted of robbery and of the unlawful possession of a hand grenade in contravention of s 32(1)(c) of the Arms and Ammunition Act 75 of 1969. They were each sentenced to 13 years' imprisonment on the charge of robbery, of which three years were conditionally suspended, and to five years' imprisonment for possession of the hand grenade, of which two years were conditionally suspended. (One of the accused was also convicted of unlawful E possession of a firearm and ammunition but that is not relevant to this appeal.)

[5] The appellant and his co-accused appealed to the High Court at Pretoria against the convictions and sentences. Their appeals were dismissed (Van der Walt J, Jordaan AJ concurring) but the Court a quo granted them leave to appeal to this Court. F

[6] The appellant appeared as accused 1 at the trial. His two co-accused were Mr Happy Skwambane (accused 2) and Mr Ben Masiso (accused 3). For convenience I will refer to them collectively as the accused. Skwambane and Masiso failed to prosecute their appeals and were not represented before us. Accordingly the only appeal that is G before us is that of the appellant.

The circumstances surrounding the robbery

[7] The premises from which the bank conducted its business were H situated at ground level at one extreme of the Waverley shopping centre. The premises were divided internally by a wooden counter and a glass partition. Customers transacted business from the front section of the premises (referred to in the evidence as the banking hall) and the bank tellers operated from the rear section behind the partition. A set of doors at one end of the partition provided access from the front I section to the rear section of the premises. The locks of the interleading doors were electronically operated by the tellers. A camera mounted in the front section of the premises was capable of photographing the inside of the premises but only if it was activated by one or other of the tellers. J

Nugent JA

[8] Three people were employed at the bank at the time of the robbery. Mr Isaac Mosadi and Ms Cathleen van Staden were tellers and Mr A Alfred Ramela was a cleaner. An amount of R25 623,85 (partly in banknotes and partly in coins) was on the premises (it was the balance from the previous day's business). Most of the coins were in bags, some of which were sealed, in an open safe behind the tellers, and the banknotes were in the tellers' tills. The other money required for the B day's business had yet to arrive.

[9] At 09h00 Ramela opened the front doors of the premises for the start of the business day and he went outside to fetch water in a bucket. When he returned he noticed a person standing alongside the automatic teller machine that was situated outside the bank alongside C the front door. Ramela thought nothing of it and he entered the premises but he immediately became aware that there was a person behind him pressing an object against his back and instructing him to open the doors that provided access to the tellers. D

[10] Mosadi was then behind the counter attending to his first customer. The other teller, Van Staden, had just provided change to a customer and was sitting at the computer extracting a bank statement. Mosadi noticed Ramela standing at the interleading door, with an armed man behind him, asking for the door to be opened. At the same time another man approached the counter opposite Mosadi and displayed a hand grenade that he was holding in his hand. Realising that an armed E robbery was taking place Mosadi activated the lock to admit the robbers. Neither of the tellers thought to activate the camera.

[11] Ms Madri-Nel van der Linden had just received change from Van Staden and was waiting for her bank statement when she heard people F enter the bank. She turned around and saw a man in a blue overall with a handgun in his hand, and another man carrying a blue bag and a hand grenade. Moments later a third man entered the bank. By then the interleading doors were open and the first two men had entered the tellers' area. The third man started shepherding the customers through G the interleading doors. Van der Linden described the third man as being tall and neatly dressed in long trousers and a jacket.

[12] The customer who was being attended to by Mosadi was Mr Josia Woest. Woest had just handed a cheque to Mosadi when he became aware that two men had entered the bank, one of whom had a handgun and H the other a hand grenade. Moments later he became aware of a third man behind him who instructed him to remain quiet or he would be killed.

[13] The observations made by the various witnesses do not quite I coincide on matters of detail but that is to be expected. In some respects the various witnesses might have been mistaken as to what they saw, and in other respects they might not have seen what was seen by others. What is clear, however, when the evidence of all the witnesses is taken together, is that three men entered the bank to perpetrate the robbery. One was dressed in a blue overall and had a handgun. One had a blue bag and a J

Nugent JA

hand grenade (evidence of what was seen later establishes that he also had a handgun). These two men entered the A tellers' area, where one of them asked Mosadi where the money was. When he was told that the money had not yet arrived the two men scooped coins from the safe and banknotes from the tellers' tills into the bag and then they fled. The third man played a less active role but the three fled together. B

[14] The evidence also establishes that immediately after the robbers left the bank one of them separated from the other two. Mrs Ilona Adendorff, who worked in a shop adjacent to the bank, was returning from depositing refuse in an alley alongside the bank when she encountered two men who came running round the corner from the entrance to the bank and collided with her. She had only moments to see them but recollected that one of them was dressed in a blue overall. C The two men continued towards the alley and scrambled over the wall separating the shopping centre from an adjoining shopping centre.

[15] That only two of the men were together as they clambered over the wall is confirmed by the evidence of Mr Lodewyk Muller. Muller D was walking on the other side of the wall with his nephew, Mr Juda Plekkenpot, when he saw a blue bag come flying over the wall and land on the ground. The bag was open and he saw that it contained bank bags and he heard the clinking of coins. The bag was followed immediately by two men who clambered over the wall. When Plekkenpot called on the two E men to stop they both pointed firearms at Muller and Plekkenpot and told them to turn and walk away otherwise they would be shot. Muller and Plekkenpot did as they were told and went into a nearby house where they telephoned the police.

[16] Meanwhile at the bank Mosadi and others had raised the alarm. From the record of the money that had been on the premises when F the bank opened for business it was established that R15 039,82 was stolen.

[17] Inspector Brits and Sergeant Venter (by the time the matter came to trial Venter had died) were patrolling in a marked police vehicle in the vicinity of the bank. Venter was driving and Brits was G in the passenger seat. At 09h14 they received a radio report that an armed robbery was in progress at the bank. (That the robbery was 'in progress' was not strictly accurate because by then the robbery must already have occurred.) They immediately drove towards the bank. As they approached an intersection immediately before the shopping centre Brits observed a blue BMW with darkened windows approaching along the H cross-street. The vehicle stopped at the intersection and then turned into the street in which the police were travelling but in the opposite direction. Because the windows were darkened Brits could not see who...