Two freed from 106-year sentence

DURBAN: After 14 years in prison, two brothers walked free this week when the Pietermaritzburg High Court scrapped their 106-year sentence for posing as cops, setting up bogus roadblocks and robbing motorists.

Judge Rashid Vahed found that the magistrate had drawn inferences in convicting Eric and Siboniso Mnguni – of 16 counts of robbery and one of impersonating a policeman – which were clearly not the only reasonable inferences in all of the circumstances.

The brothers had been convicted in the Scottburgh Regional Court on November 23, 2005 by magistrate A Mfayela.

Sentences ran concurrently, amounting to an effective 46 years. The offences happened in September and October 2001.

The judge said that unsuspecting motorists had been stopped and then robbed of their possessions. In one incident, a busload of passengers were stopped and the driver and several passengers robbed of their possessions.

The brothers had denied being at the scenes. In order to convict them, the magistrate had to be in a position to find that the evidence before him was sufficient to prove beyond a reasonable doubt that they were present.

There were witnesses who identified the brothers as being the robbers on the counts relating to the bus robbery on October 6, 2001 on the N2 near Umzinto.

But they were single witnesses and the magistrate had failed to apply the cautionary rule when dealing with their evidence, said the judge.

“The fact that only three out of the 58 passengers claimed to be able to identify the perpetrators is significant. It lends credence to the testimony of those witnesses who told the learned magistrate in the clearest terms that the lighting in the bus was such that it was impossible to make a reliable identification.”

The magistrate relied on the identification to convict them on the other robbery charges when there was no evidence linking them.

“The kernel of the case against the appellants is dependent on the evidence of identification by the eyewitnesses… Without this evidence the appellants could not have been convicted on any of the charges.”

Judge Vahed said that the magistrate had convicted the brothers on the basis of the similarity of the robberies, which, in his opinion, was of sufficient probative force to establish a nexus between the bus robberies and other robberies.

While the magistrate may have been correct when commenting that there were too many coincidences and uncanny similarities in the manner in which the offences were committed, this, however, would be sufficient to justify the inference that the same gang or group was probably involved in all of the robberies.

The magistrate misdirected himself when making the unqualified statement that “an inference that the same perpetrators were at play is irresistible”.

At most, added the judge, the magistrate may have been justified in saying that the same syndicate or gang was involved.

“He was not entitled to find that the very same perpetrators were involved in each incident,” the judge said.

He was not entitled to find the same perpetrators were involved