The deputy director of public prosecutions (DDPP) in Gqeberha has taken a local magistrate to task for her alleged mismanagement of a case involving the heist of a British American Tobacco (BAT) Company vehicle.
The office of the DDPP took the matter to the city’s high court for the review of regional court magistrate Pumla Sibiya’s decision not to allow certain evidence in the criminal case against Buyisile Teyise, Simphiwe Ranana and Mandisi Dlepu, who face charges of hijacking and armed robbery, among other things.
It is alleged that on June 15 2015 while the driver of the BAT Volkswagen Transporter vehicle was stopped at an intersection in Addo Road, he was approached by three men, one allegedly armed with a firearm.
The driver was then ordered to hand over the vehicle, and two of the assailants got into the vehicle and drove away.
The third person got into a Ford Ikon and followed the truck which drove to a secluded area.
According to court papers, at the secluded spot the men unloaded the cigarettes, worth R101,722, packed the cartons into the Ikon and drove away.
The incident was captured on CCTV from cameras installed inside and outside the Transporter.
The men were arrested at the Motherwell home of Ranana, after a tracking device used by BAT, hidden among the 339 cartons of stolen cigarettes, led police to the property.
When police arrived at the Mgwanqa Street property, Teyise, Ranana and Dlepu were allegedly caught red-handed offloading the cigarettes from the Ikon and carrying them into the house.
During the investigation, police recovered various items and samples for DNA analysis.
These included a red cap, a balaclava, cigarette cartons, a pillow case and a BAT jacket found in the house which forensic expert Warrant Officer Philip Bekker was able to positively link to the alleged robbers.
According to the founding affidavit by the investigating officer, detective Warrant Officer Moegamat Humphries, Sibiya had erred in finding that evidence from Bekker and state witness John Vermeulen, who testified regarding the BAT tracking device, was inadmissible.
“The court ruled that the evidence pertaining to the recovery of the assets are inadmissible,” Humphries said.
“It is my understanding that the defence argued that all the evidence [from Bekker and Vermeulen] are fruits of a poisonous tree.
“No evidence was, however, presented by any of the accused pertaining to which of their rights were infringed.
“It is not in the interest of justice not to admit the above-mentioned evidence.”
Fruit of the poisonous tree is a legal metaphor used to describe evidence that is obtained illegally.
The logic of the terminology is that if the source (the tree) of the evidence or evidence itself is tainted, then anything gained (the fruit) from it is tainted as well.
In his affidavit, Humphries requested that the high court review Sibiya’s ruling and set aside her August 14 2018 decision that Bekker’s evidence, obtained as a result of Vermeulen handing him the tracking device during the initial investigation, which he returned, was inadmissible.
He further asked the court to review and set aside Sibiya’s July 18 2022 decision that all the evidence derived from the evidence of Vermeulen be inadmissible.
As further relief, Humphries asked that the high court order Sibiya to hear all further evidence led by the state during the main trial, or that derived from a trial-within-a-trial.
On Tuesday, the matter was postponed to October 17 after judge Denzel Potgieter instructed the state to ensure that at least two judges preside over the review application as set out in law.
The matter is currently unopposed by Sibiya, listed in her personal capacity in court documents, Teyise, Ranana and Dlepu.
The criminal case is expected back in the city’s regional court on September 26.
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