Khetani Mbuise Nkabinde and Others v The State

On 8 August 2008, a Fidelity Security Services armoured cash-in-transit vehicle carrying R2.5 million from Bloemfontein to Kimberley, accompanied by security guards in a separate vehicle, was attacked near Petrusburg on the N8 road. Approximately 20 heavily armed robbers in five vehicles pursued the convoy. The robbers rammed the escort vehicle, subdued the guards, and forced the armoured vehicle to overturn. The robbers shot and killed an innocent motorist, Mr De La Rey, and robbed numerous other civilians caught in the traffic. They attempted to blow open the safe using dynamite and an angle-grinder. Police in a helicopter pursued the fleeing robbers and caught the four appellants in an Audi Q7 approximately 90 km from the scene. The appellants threw an angle-grinder and firearms from the Audi during the chase. Upon arrest, police recovered firearms robbed from the guards, explosives, balaclavas, and a SIM card belonging to one of the guards. The appellants claimed they were innocent, traveling to Upington for vehicle parts, and denied knowledge of the items found in the vehicle.

• Whether the appellants acted in concert with common purpose in committing murder and robbery with aggravating circumstances
• Whether the special entries made under section 317 of the Criminal Procedure Act 51 of 1977 were properly granted
• Whether there were irregularities in the trial proceedings that vitiated the convictions
• Whether the appellants had joint possession of the firearms and explosives
• Whether the prescribed minimum sentences should be imposed or whether there were substantial and compelling circumstances to deviate

1. The order of the court a quo granting leave to appeal to a full court was set aside and replaced with an order granting leave to appeal to the Supreme Court of Appeal against convictions and sentences. 2. The appeal was dismissed.

The binding legal principles established are: (1) Section 317(1) special entries are to be strictly complied with and resorted to only when the irregularity does not appear on the record; irregularities appearing on the record should be raised as ordinary grounds of appeal under section 316. (2) Common purpose in criminal conduct can be established where there is an agreement to commit the crime, or where accused persons are present at the scene, aware of the criminal acts, intend to make common cause with perpetrators, and manifest this intention through acts of association. (3) Joint possession of firearms by a group is established when all members have the common intention to possess, know of the existence of the items, and exercise control over them as a group. (4) Prescribed minimum sentences should not be departed from lightly; the legislature has determined these are ordinarily appropriate sentences unless there are truly convincing reasons justifying a different response.

The Court observed that applications for special entries are not granted automatically - courts must satisfy themselves that applications are bona fide, not frivolous, absurd, or an abuse of process. The Court noted that cash-in-transit heists are becoming an epidemic in South Africa and communities expect courts to impose severe sentences for such crimes. The Court commented that the theory that police planted evidence implied a conspiracy of epic proportions and was fanciful and absurd. The Court also noted there was nothing improper in characterizing the appellants' version as 'snert' (nonsense in Afrikaans).

This case clarifies the proper use of special entries under section 317 of the Criminal Procedure Act 51 of 1977. Special entries are strictly limited to recording irregularities that do not appear on the record of proceedings. The case also provides important guidance on establishing common purpose in group criminal conduct, particularly in the context of cash-in-transit heists. It confirms that joint possession of firearms by a group can be established where all members share the requisite intention and knowledge. The judgment emphasizes that prescribed minimum sentences under the Criminal Law Amendment Act 105 of 1997 should not be departed from lightly, particularly in serious planned violent crimes like cash-in-transit robberies.