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SCA dismisses ex-cop’s appeal against conviction

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The Supreme Court of Appeal (SCA) has dismissed an appeal brought by former police officer David Papiki Komane against a decision of the Limpopo High Court which found him and two co-accused guilty of robbery with aggravating circumstances.

The issue before the SCA was whether the trial court should have convicted Komane based on a confession, DNA evidence, the pointing out and whether the applicant had a case to answer.

An outline of the case in the judgment states that Komane, together with three co-accused, was convicted of robbery with aggravating circumstances on January 26, 2018 in the High Court in Polokwane.

Accordingly, he was sentenced to 18 years’ imprisonment.

His application for leave to appeal against both conviction and sentence was dismissed by the High Court and he then approached the SCA.

The applicant’s conviction, according to the SCA, arose as a result of a robbery that took place at a G-Force Security Solutions (G4S) Ddpot in Marble Hall.

The movie-style heist happened shortly before midnight on December 9, 2015.

In the well-scripted attack, a group of armed men camouflaged in female clothing broke into the cash depot of the G4S premises.

They bludgeoned open the security doors and the roller garage door before they went in and removed over R11 million in cash.

The petrified female cashiers, who were busy counting the money, sought refuge in the office within the counting hall.

Footage gathered from the CCTV indicates the incident lasted less than 30 minutes.

“After the mayhem at the scene, the robbers fled the premises in various motor vehicles whilst firing gunshots,” the court papers read.

Komane was later arrested at the Marble Hall Police Station where he was employed as a constable in the South African Police Service (SAPS).

Following his arrest, his motor vehicle and home were searched but no money was found.

He was then booked into the police cells at Polokwane Police Station for the night.

On December 10, 2015, he was booked out by police officers involved in the investigation of the robbery and he directed a team of investigating officers to a homestead of a healer/priest in Siyabuswa, where he collected a parcel containing over R600 000 in cash.

The money was handed over to one Warrant Officer Lombard and was counted in the applicant’s presence.

Later in the day, Komane made a statement to one of the investigators.

In the trial court, it was submitted on behalf of the applicant that the DNA was circumstantial evidence and was inadequate to sustain a conviction.

Furthermore, the applicant contended that the High Court should not have admitted the applicant’s statement made to one of the investigating officers as the applicant was not afforded legal representation at that time.

He further claimed the statement was dictated to him by a Colonel Brinkman, who was also involved in the investigation of the matter.

The SCA found that the DNA of the applicant was found in a single place with that of his erstwhile co-accused one and two, who were involved in the planning and execution of the robbery from the outset, which could not be said to have been a coincidence.

The SCA also found that the detailed nature of the statement given by the applicant to the investigating officer showed that the applicant had personal knowledge of the events.

In addition, the SCA accepted that the investigating officer knew that the applicant was entitled to legal representation specifically for the purpose of taking the statement.

This, according to the judgment, was clear from the recording of the response given by Komane, where he said: “I have a legal representative who will come to court, I do not need him now.”

Consequently, the SCA held that the trial court was correct in its admission of the statement by the applicant to the investigating officer.

In respect of the pointing out, the SCA held that the manner in which the pointing out was conducted went against what is prescribed in Section 217(1) of the Criminal Procedure Act 51 of 1977.

However, the SCA found that there was sufficient circumstantial evidence on which the applicant was convicted.

It also held that the DNA evidence and the confession, together with all the other evidence, was sufficient to prove beyond reasonable doubt that the applicant, together with all his erstwhile co-accused, were complicit in the commission of the robbery with aggravating circumstances, as proven by the state.

The trial court, therefore, convicted him correctly, it concluded. – Staff Reporter

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Guptas lose application to have restraint order case postponed

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NO SMILING MATTER . . . An interim restraint order against a company that Atul Gupta, seen in this file photo, co-owns with his brother and their wives remains in force

The Free State High Court on Friday dismissed a last-minute application brought by the directors of the Gupta-owned slandsite Investments 180 (Pty) to postpone the return day of the provisional restraint order against company, Iqbal Sharma and others.

Acting Judge Neil Snellenburg will provide a written judgment for dismissing the postponement application on Monday.

The directors sought a postponement pending their application to the Supreme Court of Appeal where they are appealing against a High Court ruling passed in August 2021 that said the business rescue practitioners of Islandsite, not the directors, have the authority to represent the company in the restraint proceedings.

Investigating Directorate spokesperson Sindisiwe Seboka said in a statement the interim restraint order will remain in force until the next court hearing on 20 and 21 October, when the confirmation hearing is expected to be heard.

The assets under restraint include properties of Iqbal Sharma and his wife, his UAE-registered company, Issar Global, his wife Tarina Patel-Sharma, as well as all property of Islandsite, which is owned by Atul and Rajesh Gupta and their respective wives, Chetali and Arti Gupta.

The interim restraint order was granted in June 2021, in terms of the Prevention of Organised Crimes Act (POCA).

Sharma’s assets that form part of the curator’s inventory include his Sandton home valued at over R12-million.

The property was featured on the lifestyle television programme, Top Billing, and is owned by Issar Global.

Other assets include movable property valued at R500 000, a Porsche and a R1.3 million sectional title home in Sandton.

Properties owned by Gupta family company Islandsite that form part of the inventory include a house worth R21-million in Constantia, Cape Town, and a R12-million house in Saxonwold, Johannesburg.

Said Seboka: “The interim restraint order continues to run . . . that means the curator that is looking after the assets remains in place, meaning there is no chance for those assets being disseminated.

“The state is quite comfortable that the assets will not be taken abroad or be given to other people, in terms of the shares.

“They continue to be in safekeeping.

“For us that is pivotal and the court has found enough evidence in that respect.” – Staff Reporter

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Ex-MEC faces probe over failed R1-billion Free State housing project

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NO PROPER LEADERSHIP . . . Former Free State MEC for human settlements Mosebenzi Zwane criticised

The State Capture Commission wants former Free State MEC for human settlements Mosebenzi Zwane investigated for failing to provide “proper provincial leadership” in a failed R1-billion provincial housing project.

The department’s former head, Nthimotse Mokhesi, told the commission, led by Chief Justice Raymond Zondo, that his office had made an advance payment of more than R500-million to the project’s contractors before any work was done.

Described in the fourth part of the State Capture Commission’s report as a “dismal failure”, the housing project was dogged by several factors including a decision by former Free State premier Ace Magashule to build bigger RDP houses from the initial 40-square-metre units without consulting the provincial human settlements department and the contractors.

The commission found that Zwane, the human settlements MEC at the time, “failed to provide proper provincial leadership” with regard to the R1-billion housing project.

The report criticised Magashule for not monitoring projects and not holding Zwane accountable.

It said instead Magashule made Zwane the MEC for agriculture, “where he continued with his dismal performance”, resulting in the Estina/Vrede Dairy Farm collapse. – Staff Reporter

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Magashule escapes Zondo rap over asbestos project ‘scam’

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ASBESTOS PROJECT CASE . . . Former Free State premier Ace Magashule is facing charges of corruption, fraud, theft and others together with 15 co-accused

Chief Justice Raymond Zondo has not made any recommendations in his latest state capture report for a criminal investigation against former Free State premier Ace Magashule for his role in the failed 2014 asbestos eradication project for which he is currently standing trial.

Zondo, in the fourth part of the State Capture Commission’s report, instead recommended that the National Prosecuting Authority (NPA) consider charges against the head of the Free State human settlements department, Nthimotse Mokhesi; businessman Edwin Sodi; and former director-general of the department of human settlements Thabane Wiseman Zulu for their roles in the asbestos audit and removal debacle.

Magashule is facing charges of corruption, fraud, theft and others together with 15 co-accused who include Mokhesi, Sodi, Zulu and several companies for their part in the asbestos contract worth over R255-million.

The report also urges the government to seek legal opinion on whether it could recover the money paid to Sodi’s company Blackhead Consulting and its joint venture partner Diamond Hill to audit and remove asbestos roofing on identified houses in the Free State.

It also found the Blackhead Consulting/Diamond Hill joint-venture lied to the provincial authorities about its ability to do the job.

The use as well as the manufacture and processing of asbestos was banned in South Africa in March 2008 as it is a serious health hazard to the lungs.

The Free State human settlements department embarked on the project after it approved an unsolicited proposal from from the Blackhead Consulting/Diamond Hill joint-venture.

This, according to the report, was done without following any competitive process.

“The department paid about R255-million to the joint-venture but ultimately no asbestos was removed from the roofs of houses,” the report says.

“It turned out that this joint-venture was not even qualified to undertake the removal of asbestos despite the fact that they had told the department in their proposal and in the service legal agreement that they signed with the provincial department that they had the qualifications, skill, expertise and experience required for the job.”

The report described the project as “a considerable scam from its inception”.

It said it was clear the project “was always intended to unlawfully benefit a certain business consortium”, adding those benefits were also intended for various government officials.

Just as in the matter before the Free State High Court, the report indicates that Sodi paid R650 000 towards the purchase of a property for Mokhesi in Bloemfontein.

“The commission is satisfied that this payment was made as a reward or inducement or both for the asbestos contract,” said the report.

It found Mokhesi as a central figure in the awarding of the contract to the Blackhead Consulting/Diamond Hill joint-venture.

The human settlements MEC at the time, Olly Mlamleli, has not been implicated as the investigation did not look into why she did not realise that there was a problem with the project and intervene timeously in order to save public funds from being wasted.

The report also states that Magashule could have intervened together with Mlamleli.

The report wants Mokhesi investigated for corruption following his decision to contract the Blackhead Consulting/Diamond Hill joint-venture.

It has also recommended an investigation for possible prosecution for breaching provisions of the Public Finance Management Act.

He is already facing similar charges in the on-going case.

The commission also found that Sodi paid R600 000 into the account of a Ballito car dealership in December 2015 with reference “TZ” which said was common cause it stood for Thabane Zulu.

When he appeared at the commission in 2020, Sodi told the commission in 2020 that he owed Zulu for alcohol he had bought at his entertainment venue outside Pietermaritzburg.

When Zulu was asked how Sodi’s alcohol bill reached hundreds of thousands of rands, he told the commission Sodi often hosted parties for “dignitaries” at his KwaZulu-Natal home.

“Instead of taking the money I decided to instruct him to deliver the money where I wanted it,” he said.

The explanations by the two did not convince the commission which concluded the money “may well have been a bribe or reward to Mr Zulu for his role in facilitating the award of the asbestos contract”.

It recommended that criminal charges relating to corruption or any other applicable crime should be pursued against Zulu for the R600 000 that Sodi paid. – Staff Reporter

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