A man who was sentenced to life in prison for the murder of a security guard in 2003 has successfully overturned his conviction in the Supreme Court of Appeal (SCA) in Bloemfontein.

Fanie Archibold Ndimande approached the SCA after the Gauteng High Court in Johannesburg convicted him on charges of murder and robbery with aggravating circumstances.

He was also convicted of attempted robbery with aggravating circumstances, unlawful possession of a firearm, unlawful possession of ammunition and three counts of attempted murder. 

In its ruling on Monday, the SCA said the State had failed to prove its case beyond reasonable doubt, adding Ndimande’s constitutional rights were violated.

“The appeal is upheld, and the conviction and sentence of the appellant are set aside,” Acting Judge Wendy Hughes ruled.

According to the judgment, on August 3, 2003, at around 22:00 at Amabele Spar in Ivory Park, Johannesburg, a gang of armed men wearing balaclavas attempted to rob the store.

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Two staff members and a security guard were accosted by the gang while they were closing the store. When a scuffle ensued, the security guard was dispossessed of his firearm and fatally shot, read the judgment.

However, the staff members managed to flee the store. The incident was recorded on video cameras located inside the store. 

During the trial, the State alleged Ndimande was one of the attackers. The two staff members, however, told the High Court they could not identify the attackers as they were wearing balaclavas.

The store’s security manager, Hamilton Mbatha, however, identified Ndimande as one of the attackers after he had viewed video footage a day after the incident. 

Mbatha said Ndimande was the only one who had removed his balaclava. He also claimed that four months after the incident he saw Ndimande at the store when he was brought to conduct a pointing out with the police.  

But in her ruling, Judge Hughes found during Ndimande’s trial, it appeared the High Court had relied on the dock identification of Mbatha.  

She also found Mbatha’s evidence could not be said to be reliable as it was not corroborated.

“Most unfortunate is that the video footage which Mbatha places reliance upon was not produced in court as evidence,” Judge Hughes said.

“The production of this evidence was relevant as Mbatha had the suggestive benefit of having seen the appellant [Ndimande] during the pointing out and viewing him in the dock.

“The failure to adduce such evidence was fatal to the State’s case,” she ruled.

According to the judgment, Ndimande had argued that the pointing out was “improperly obtained”, adding that it was obtained in violation of his rights to a fair trial. 

He also said one of the police officers, Inspector Lele Khumalo who acted as an interpreter during the pointing out, instructed him on what he had to point out.  

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Judge Hughes came down hard on the High Court, saying it should “exercise caution” when dealing with evidence of identification.

“It is unfortunate in this case that the constitutional rights of the appellant were infringed … he was detained without being informed of such rights.”

Judge Hughes said admissions were obtained from Ndimande without warning him of the consequences of making them.

“He exercised the right to remain silent which was ignored and the pointing out proceeded with disregard of his election to make a statement in court.”

Meanwhile, Justice KGB Swain, who wrote a different judgment on the case, said he agreed with submissions made by Ndimande’s counsel that he did not enjoy a fair trial because his constitutional rights were infringed by trial court. 

“First, he was prevented from testifying about the events between his arrest and his arrival at the police station, some nine hours later.

“Second, he was prevented from testifying about the events on December 25, 2003, when he made the warning statement in which he elected to remain silent,” Swain said.

A classified report purporting to have found that the South African Revenue Services (SARS) had a “rogue unit” was leaked to the media by the EFF on Monday evening.

The 2014 inspector-general of intelligence (IGI) report was sent by EFF spokesperson Mbuyiseni Ndlozi to a WhatsApp media group. 

This followed an Equality Court ruling earlier on Monday that dismissed Public Enterprises Minister Pravin Gordhan’s application to strike the IGI report, which was attached as an annexure in the EFF’s court papers responding to the hate speech charges that he had laid against the red beret leader Julius Malema and his deputy, Floyd Shivambu.

READ: Dlodlo to head to court to remove classified intelligence report central to Public Protector’s rogue unit investigation – report

In a statement, the EFF welcomed the court’s dismissal of the strike-out application, which means the inspector-general of intelligence report remains part of the party’s court papers.

“We welcome the opportunity given by this judgment for the IGI rogue unit report to be deliberated in the open public court,” Ndlozi said in a statement earlier.

“Both a Chapter 9 institution, in the form of the Public Protector and a Chapter 11 institution in the form of the inspector-general of intelligence have found that Pravin Gordhan ran an illegal intelligence unit within SARS.

“They determined that he must be criminally prosecuted. Today’s judgment is a victory of accountability against an individual who feels [he is] above the law.”

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Gordhan’s attorney, Tebogo Malatji, confirmed to News24 the strike-out application had been dismissed, adding the court had not furnished reasons for the dismissal.

He said the strike-out application was made because the report was not relevant to the hate speech charges and it was not yet been established if the report was authentic and if it was, if it had been declassified.

The hate speech charges followed a scathing attack launched on Gordhan outside the venue, where he was testifying before the Zondo commission of inquiry into state capture in November 2018.

At the time, Malema called Gordhan “corrupt”, “a dog of white monopoly capital” and claimed he hated black people, News24 previously reported.

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Malatji added the lawful use of the report was still subject to another case involving Gordhan and Public Protector Busisiwe Mkhwebane.

This case relates to the review application of Mkhwebane’s report into the SARS “rogue unit” in which she instructed President Cyril Ramaphosa to discipline Gordhan for his authorisation of the establishment of the unit while he was SARS commissioner.

She found the unit to have been illegal, it engaged in illegal activities, and Gordhan lied about a meeting with a member of the Gupta family.

The review application, which was instituted by Gordhan, has not yet been heard.

Meanwhile, State Security Agency spokesperson Mava Scott said it would be going forward with its interlocutory application to have the IGI report struck from the EFF’s court papers.

This after City Press reported on Sunday that State Security Minister Ayanda Dlodlo wanted to have the report removed from the EFF’s court papers as it contained sensitive information.

“The report contains secret information exposing the identities of members and former intelligence members as well as methods of the agency, which is protected from publication by the law,” Scott told the publication.