WHEN it is in the interests of justice and to an extent the protection of victims, an accused can be complelled to give incriminating evidence against himself. A case in point: The Minister of Safety and Security applied to court seeking permission to have a bullet surgically removed from the leg of a person accused of being involved in a robbery for the purposes of ballistic tests. They contended that the accused was shot and injured in the course of a botched robbery in which both the victims were killed. The accused resisted the application and the removal of the bullet on several grounds. An eye-witness had told the police that one of the robbers had been shot and injured. About two days after the robbery the police learnt from an informer that the respondent had been involved in the aforementioned incident and had bullet wounds in his thighs. The next morning the man was detained, with both his thighs in bandages. he indicated to the police that he had been involved in a scuffle at a tavern the previous day when someone interfered with his girlfriend and that he had been injured with a screwdriver. He also mentioned that he had received medical treatment at a particular hospital. The police took him to the hospital but there was no record of him being treated there. The owner of the tavern also denied that the incident described by the accused had taken place. Furthermore, the alleged girlfriend, in the accused’s presence, denied he was her boyfriend and had no knowledge of any injuries sustained by him with a screwdriver. The respondent was thereupon arrested on the two murder charges. The next day, the accused was taken to a District Surgeon. He reiterated his earlier explanation for his injuries and told the doctor he had been stabbed with a screwdriver. The doctor noted that his injuries looked like slightly septic bullet wounds which had not been professionally treated. X-rays were taken and they showed a clearly visible bullet in his upper left leg. The eye-witness to the robbery could unfortunately not positively identify the man and therefore the only available evidence to link him to the murders was a forensic test of the bullet. An orthopaedic surgeon told the court that the removal of the bullet would be a relatively simple and safe procedure under general anaesthetic. The police obtained a search warrant to secure the bullet but the accused refused to give permission for it to be removed from his leg. The accused contended that the medical procedure could endanger his life and result in pain, suffering and inconvenience. Furthermore, he contended that if the application was granted his rights would be violated. The court ordered that the police were entitled to use reasonable force, including any necessary surgical procedure, performed by qualified medical doctors, to remove the bullet and use it as evidence in accordance with the Criminal Procedure Act. The accused was ordered to subject himself to the necessary surgical procedure. The bullet was duly removed and used in evidence in the trial.
Reporter: Yunus Kemp
A FORMER Apla member granted amnesty after the St James Church massacre and six other men have appeared in the Wynberg Magistrate’s Court after the cash-in-transit heist on Wynberg Hill on Tuesday. A trafic policeman, James Mayston, was shot and injured as the attackers were fleeing. Former Apla member Gcinikhaya Makoma, 26, Charles Sigabi, 25, and Zola Dadani, 25, all of Khayelitsha, Poyo Gobo, 19, and Lunga Luke, 25, of Langa, and Tokiso Sithole, 18 and Vuyo Nyabaza, 18, of Gugulethu, were arrested shortly after a cash van was attacked at the foot of Wynberg Hill near Contstantia. In the attack R1.8 million was looted from the van, loaded with money destined for autobanks in the Peninsula, and the driver of the van was pistol-whipped. Police were called and a high-speed car chase let to Ottery, where seven of the men were arrested. Eight men escaped with most of the money, but police recovered a bag of cash, a number of firearms including an AK-47, an R5 assault rifle and two 9mm pistols, and ammunition. Makoma was a member of the Pan Africanist Congress’s military wing, the Azanian People’s Liberation Army and along with two others, was found guilty of attacking worshippers during a service at St James Church in Kenilworth on July 25, 1993 with firearms and hand grenades. Eleven people died and 58 were injured. The three were serving life sentences when they were granted amnesty by the Truth and Reconciliation Commission in June 1998. At the court yesterday security was tight. Members of the police’s intervention unit led the seven men from the holding cells to the dock. The officers, all wearing bullet-proof vests, kept watch over the men and their families, who had packed in the public gallery. Ben Mathewson, for Gobo, Luke and Nyabaza, told magistrate Anieke Pretorius that his clients had been assaulted by police during their arrest. “I wish to place on record… that police trampled Gobo’s head, that after being handcuffed, Luke was kicked in his lower body and dragged by his arms, and that Nyabaza was mauled by police dogs which bit his legs,” said Mathewson. The men were not asked to plead. Pretorius postponed the matter to September 5. When the seven men stepped down from the dock, their family members stood up and rushed to get near them. Police stepped between family members and the men and prevented them from having physical contact, but not before relatives threw envelopes with money at the men. The men were remanded to Pollsmoor.
Reporter: Fatima Schroeder
SECURITY was tight at the Wynberg Magistrate’s Court yesterday where seven men, including one granted amnesty for the St James church terror attack in 1993, appeared in connection with a R1.8million cash-in-transit heist in Ottery on Tuesday. Traffic officer James Mayston was shot in the right arm by cash-in-transit robbers. While on their way to an accident scene, he and his colleagues unwittingly drove behind the alleged robbers at high speed on the M3. Minutes later police arrested some of the men at a stop street. Another three were arrested near Ottery Hypermarket. Police recovered the money and confiscated and AK-47 rifle, an R5 assault rifle, two 9mm handguns and ammunition. One of the men, Gcinikhaya Makoma, a former member of the Pan Africanist Congress’s military wing, the Azanian People’s Liberation Army (Apla), was released from jail in 1998 after he was granted amnesty for the St James Church released from jail in 1998 after he was granted amnesty for the St James church terror attack on July 25, 1993 that claimed 11 lives. He and two other men were serving life sentences for 11 murders and 58 counts of attempted murder and were granted amnesty by the Truth and Reconciliation Commission in June 1998. In court yesterday, several members of the police’s Intervention Unit were present to prevent the accused’s family and friends from reaching them. State prosecutor Sarie Brink said the accused – Makoma, poyo Gobo, Charles Sigabi, Tokiso Sithole, Zola Dadani, Lunga Luke, and Vuyo Nyadaza – would be charged with armed robbery Brink asked the court for a seven-day postponement for further investigation. She said crime intelligence was compiling profiles of all seven men. Attorney for three of the accused, Ben Mathewson, placed on record that his clients said they were assaulted by police after their arrest on Tuesday. He said Gobo received head injuries and that Luke was kicked in his lower body and pulled by his arms. Nyadaza had leg injuries from being bitten by police dogs, Mathewson said. Magistrate Anieke Pretorius postponed the trial to September 5, when the court is expected to set a date for the bail hearing.
TWO more alleged drunken-driving offenders are expected to challenge the accuracy of the Drager Alcotester, following Thursday’s acquittal of an alleged offender, the second awarded. Alleged offender Brian Popple, 26, pleaded not guilty in the Cape Town Magistrate’s Court on Thursday. Last week, Albertus Bernadus Malan van Niekerk, 29, of Table View, was acquitted in the same court after disputing the accuracy of the Drager Alcotester, a sophisticated mechanism newly in use that measures the alcohol vapour in an alleged offender’s breath. Popple, who had a Drager breath reading of 1.30mg per 1000ml, was found not guilty of drunken driving, and not guilty of driving with a breath count in excess of 0.24mg. People’s defence attorney Keith Gess put the onus on the state to prove the Drager’s accuracy. This could be done only with testimony by either of the country’s two Drager experts – one in Durban and the other in Pretoria. The other alleged offenders are Bridgette Theunissen and Charles Bergman, who appeared on Thursday. Bergman’s case was postponed to June 4, and Theunissen’s to August 14. A Cape Town Unicity spokesperson said it was at the discretion of control officers at road blocks to decide whether a suspect’s condition justified a blood test.
(MURDER SUSPECT ACCUSES POLICE OF RUSHING THROUGH SURGERY TO REMOVE BULLET FROM HIS LEG AFTER LANDMARK COURT RULING)
MURDER suspect Sizwe Gaqa this week described how police marched him into a hospital’s surgery in chains after a judge gave permission for a doctor to cut out a bullet lodged in his thigh. Speaking for the first time about the operation, Gaqa on Friday told the Sunday Times from a cell at the Bellville Police that he had been led into a Tygerberg surgery in fear. A part-time shoe salesman and taxi driver in Gugulethu, Cape Town, Gaqa is accused of involvement in a New Year’s Eve robbery in which ashabeen owner and hisassistant were shot dead outside a bank. Police believe one of the victims fired the bullet lodged in his thigh, but Gaza says he was shot by a “friend”, whom he has forgiven. Gaqa said he had been taken to the hospital in chains, handcuffs and leg irons at 7am on Wednesday only hours after Cape High Court Judge Siraj Desai made his landmark ruling that the bullet could be removed against Gaqa’s will. At the same time, Gaqa’s lawyers were filing an urgent application for an interdict ordering police not to remove the bullet until an escort were met by “a lot of policemen who did not want me to speak to my lawyer”. In the hospital’s car park, the state’s attorney asked him to sign papers consenting to the operation but he refused, believing he still had the right to petition the Supreme Court of Appeal. “I was not happy about that… because I know that I had a right to appeal to the highest court, and they did not want to give me that chance,” he said. The consent forms were instead signed on his behalf by the sheriff of the High Court. Ben Mathewson, Gaqa’s attorney, said that he hand Jan Marais, Gaqa’s advocate, had told the police attorneys he intended to lodge an application for leave to appeal. They have continued their attempts to petition the appeal court in Bloemfontein. If they succeed, the bullet extracted from Gaqa’s leg may be deemed inadmissible as evidence in the double murder trial. Gaqa claims police deliberately rushed Wednesday’s operation to pre-ampt any appeal. He said that on the way to the surgery “police were talking a lot of things to me, they were saying that my lawyers could not stop the operation, no matter what my lawyers say”. He said he was afraid of the operation, especially as he had never undergone surgery before. “When I was there in the doctor’s room I was asked if I want to as a question. He said he asked the surgeon, “are you sure 100% that my leg is not affected by that operation, and the doctor is saying, no I am not 100% certain”. Professor Brian Warren, professor of surgery at the University of Stellenbosch, yesterday confirmed that he had removed the bullet, but said he could not comment further until authorised to do so by Tygerberg’s medical superintendent. Gaqa said he had told the doctor that he did not want him to carry out the operation, “but the doctor said to me he had instructions from the court”. The doctor had also “asked me to sign this form”, apparently a document indemnifying the hospital. With police standing by, Gaqa said, the doctor administered a general anaesthetic by inserting a syringe needle into a vein in his arm. He was not restrained and did not resist the injection, he said. A mask was placed over his face and he lost consciousness. Gaqa said when he came round he saw that his left thigh was bandaged and that police were still in the surgery. Police spokesman Wicus Holtzhausen said only a forensic detective was present during the operation but that more policemen were present before and after it “to prevent any excape attempts”. Gaqa was taken out of the hospital in a wheelchair and returned to Bellville Police Station. He estimated that he was back in his cells at around 6pm. Gaqa said: “I was angry that the police were already preparing me for surgery even before the judge made his decision.” The night before the operation, police had told him not to eat or drink so that the operation could be carried out. “My right to appeal was taken away from me,” Gaqa said.
* See Minister of Safety and Security & Another v Gaqa 2002 (1) SACR 654 (C) and Minister of Safety and Security & Another v Xaba 2003 (2) SA 703 (D).
(Lawyer in 11th-hour bid to halt surgery)
BY NEXT week police should know Alfred Sizwe Gaqa’s secret – was he shot in the leg during a botched robbery that ended with the murder of a shabeen owner and his bodyguard? And the truth should be revealed by ballistic tests on the bullet removed, by order of the Cape High Court, from Gaqa’s thigh in Tygerberg Hospital yesterday. Yesterday was a day of drama, with the action switching from the hospital to the Cape High Court and back to hospital. It is believed to be the first time in the world that a bullet, regarded as crucial evidence in a police investigation, has been removed from an unwilling patient by court order. Gaqa is the prime suspect in the double murder and attempted robbery of tavern owner Mabona Boesman and his security guard Boxer Bangani on December 31 last year. Investigating Officer Ivan van den Heever discovered that one of the suspects had been shot in the robbery, and then heard Gaqa had a bullet wound. Gaqa at first claimed he had been attacked by a person wielding a screwdriver. He was arrested after his story did not hold up, and an X-ray revealed a bullet in his left thigh. Gaqa then claimed he had been shot by an acquaintance. Preliminary ballistic investigations indicated that the bullet was of a similar calibre and type to the one fired from Boesman’s gun. But the police needed the bullet to see if it linked Gaqa to the murders. Gaqa, however, refused to have it removed, and so the police went to the Cape High Court where on Tuesday they persuaded Mr Justice Siraj Desai to grant an order compelling him to surrender it. The judge said there was no medical evidence to indicate that Gaqa’s life would be endangered by the surgery, and it weighed in the police’s favour that the bullet was the only evidence that could link Gaqa to the crimes. He denied Gaqa leave to appeal against his decision, but Gaqa’s lawyers said they would petition for the right to appeal. After the order Gaqa, who is in custody, was given until 11am yesterday to agree to the procedure. At 11.08am, when he still refused to sign doctors’ consent papers, the Sheriff of the High Court was summoned to the hospital and signed on his behalf. Doctors prepared Gaqa for surgery. But then Gaqa’s attorney, Ben Mathewson [Barend Frederick Mathewson], decided to lodge an urger application in the High Court for an interdict to stop the doctors, pending a petition to the Supreme Court of Appeal for leave to appeal Judge Desai’s judgment. Doctors stopped attending to Gaqa shile his legal team rushed off to court. At the same time, the police’s lawyers applied, in terms of High Court rules, for another order to enforce Judge Desai’s ruling even if an appeal is still pending. Judge Desai allowed the application. At this point the Gaqa application fell away. After the judge handed down his order, Gaqa was wheeled into surgery.
CAPE TOWN – Western Cape police have won a court order to retrieve the only hard evidence they have in a double murder case – a bullet in their prime suspect’s leg. Sizwe Gaqa had indicated that he was not going to let the police have the bullet. However, on Tuesday morning Cape High Court Judge Siraj Desai gave the police permission to use reasonable force, including surgery by a qualified doctor, to remove the bullet. He gave Gaqa, who is being held in custody, 24 hours to change his mind, failing which the Sheriff of the court could give the go-ahead for extraction. The drama in the unusual case started on New Year’s Eve when Mabona Boesman and his bodyguard, Boxer Bangani, were shot dead during a botched robbery in Bellville. Investigating Officer Ivan van den Heever discovered that before he died, Boesman had shot one of his attackers during the robbery. On January 2, Van den Heever received information that Gaqa had been involved in a robbery attempt and had been shot in both thighs. Gaqa first told them he was attacked with a screwdriver, then that he had been shot by an acquaintance on New Year’s Day at Strandfontein. He said the gunman had apologised and he did not intend to pursue the matter any further. In papers before the court Gaqa said that he was not willing to subject himself to a medical procedure that might endanger his life and cause pain. The police lawyer in the application argued that detectives had no other witness who could identify the killer of the two men, and that made the bullet crucial evidence.
Die presidentswag wat in Januarie weens motordiefstal in hegenis geneem is, het die president en ministers beskerm sonder enige formele polisie-opleiding. Hy het nooit deur ‘n polisiedossier gewerk of ‘n saak ondersoek nie. Mnr. Franco Ndlovu (28) van Wattle Grove-straat, Pinelands, is op 27 Januarie by die polisiebarakke in hegtenis geneem waar hy aan een van ses gesteelde motors gewerk het. Hy het gister getuig dat hy sonder enige spesiale opleiding saam met Pres. Thabo Mbeki en ministers oorsee gereis het. Ndlovu staan saam met mnr. Sibusiso (Innocent) Kunene van Langa voorlopig tereg op ses aanklagte van diefstal. Vyf gesteelde BMW’s en ‘n Mazda is gevind in van die motrhuise by die polisiebarakke. Ndlovu het getuig hy is na st. 8 op Greytown, KwaZulu-Natal, na Zambië waar hy hom by die ANC aangesluit het. “Ek het vroeg in 1988 na Suid-Afrika teruggekeer waar ek my bedrywighede binne die ANC voortgesit het. Ons het mense in die townships opgelei. Nadat ek in 1994 uit die tronk vrygelaat is, het ek by Shell House gaan werk waar ek amptenare en leiers van die ANC beskerm het. “Ek was ‘n sekerheidsbeampte by die ANC-kantoor op Greytown. Na 1994 is ons outomaties by die Polisiediens ingelyf,” het hy getuig. Op die vraag van mnr. Keith Gess, sy regsverteenwoordiger, of hy enige formele opleiding gehad het, het hy gesê hy het geen ondervinding van polisiewerk nie. Op ‘n vraag oor sy posbeskrywing het hy gesê: “Ek het voortgegaan om die ANC-leirskap te beskerm.” Ndlovu het gesê hy het saam met ministers en selfs Mbeki oorsee gereis. Sy misdaadgeskiedenis is nooit nagegaan nie, het hy getuig.
Reporter – Gasant Abarder
POLICE are investigating a 20-year-old Maitland woman, who claimed she was kidnapped from a city hotel, for bringing a substantial amount of foreign currency into the country without declaring it. Investigators are also probing a possible drug link after she declined to lay charges against her alleged abductors. What puzzled police was that Leahanda von Greunen laid no charges against her abductors and claimed to weekend newspapers that she was a Dutch tourist who was packpacking in South Africa. Police are now investigating a possible drug link, according to police spokesperson Jacques Wiese. “This is the way drug dealers usually operate. If they find themselves in a spot of trouble they do not want to lay charges with the police.” On further investigation, the police found that Von Greunen is a South African citizen with dual SA-Netherlands citizenship and a Dutch passport. Von Greunen entered South Africa from Mauritius with about US$12000 that was not endorsed on her passport. Wiese said that if Von Greunen could not provide valid reasons for possession of the dollars, the money would be forfeited to the state and she could face charges. He said a team of investigators from the South African Reserve Bank were co-operating with police in the case. Von Greunen claimed she was kidnapped from the reception area of the Tulip Inn in Strant Street shortly after she arrived in the city from Mauritius on Thursday. She claimed her abductors then drove her to Langa she was burnt with cigarettes, beaten, kicked, scratched with a nail and locked in a shack. Her Tanzanian boyfriend, Zaki Nazzir, 25 – who she claimed was a Saudi Arabian citizen – followed the abductors’ vehicle and was also attached and locked in a seperate shack. The couple were picked up by Langa police after residents found them. No arrests were made. Wiese, however, said witnesses had seen her leaving the hotel with the men in an amicable fashion. He said there was further compelling evidence to suggest there could be a drug link which could not be disclosed at this stage. Police are also baffled as to why Von Greunen had booked into a hotel when it is known that she lived with Nazzir in Maitland. Director Johan Klein, acting area commissioner of the West Metropole, said because Von Greunen was a South African citizen it did not mean that her kidnapping would be seen as less serious. “Even though no further investigation was requested by the victim, we regard the matter in a serious light and will be investigating the matter to the full extent of the law.” “The circumstances under which she was kidnapped from the hotel in Cape Town are currently under investigation. We have obtained sensitive information (about) the incident which cannot be disclosed at this stage,” Klein said. He said that Von Greunen had misled weekend newspapers, and that these inaccurate reports had done a lot of harm to the image of Cape Town’s tourism industry.
A paralysed Plumstead man is alleged to have shot his 17year-old girlfriend dead during an argument in his car as they drove home through busy Claremont. Kenneth David Daniels, 28, appeared yesterday in the Wynberg Magistrate’s Court where he was granted R1000 bail. The State alleges that Mr Daniels, who was paralysed from the waist down in a car accident eight years ago, shot Hasira Galant in the head on Saturday afternoon. The State did not oppose his bail application and no formal charges were put to him. The incident happened at 3.15pm as shoppers headed hom in the busy southern suburbs. A security official stopped next to Mr Daniels’s car, which was parked on a bridge. When he approached the car he saw Ms Galant had been shot dead. He allegedly took a gun from Mr Daniels, who was in the driver’s seat. The wheelchair-bound Mr Daniels was later arrested by the police. Defence attorney Ben Mathewson said Mr Daniels had told him that he had argued with Ms Galant, who tried to wrest his gun from him. His client would testify that Ms Galant was in control of the gun when a shot went off, hitting her in the head. Mr Mathewson told the court that Mr Daniels had been on medication since being paralysed. He said it was Mr Daniels’s gun that had been discharged during the argument with Mr Galant. Magistrate Gavin du Plessis adjourned the case until Agusut 3 for further investigation.