Payback time: cops might have to repay R100m robbers stole in heist

Insurers are claiming more than R100m from the police minister in a sequel to a 2014 cash heist at a security company vault in Witbank.

Two police officers were part of a gang that planned and executed the R104.4m raid at SBV Services. In 2018, all 13 robbers were jailed for 20 years.

Lloyd’s of London paid out on SBV’s policy, and now it wants the police minister to refund it.

It says gang members Det-Const Lekele Reckon Lekola and WO Tamsanqua Gladstone Khubeka failed in their legal duties as police officers to prevent the robbery and not to participate in criminal activity.

This left the police minister “vicariously liable for the losses incurred as a result of the robbery”, according to a supreme court of appeal judgment on Tuesday.

Police minister Bheki Cele appealed to the bench of five judges in Bloemfontein, after the Pretoria high court ruled against him when he wanted to change his plea.

Cele’s proposed new arguments was that no legal action can arise from an illegal act — in this case, the robbery — and that when parties are equally at fault, the defendant’s position is more compelling.

But the appeal court agreed with the high court that the new plea was “bad in law”, dismissed Cele’s application and ordered him to pay Lloyd’s costs. The ruling means the trial can now go ahead.

It was Freedom Day in 2014 when robbers talked their way into the Witbank depot by claiming to be from SBV’s head office and saying they were accompanied by police officers.

Lekola and Khubeka claimed they were there to investigate a crime and question employees, but once the gang was inside they overpowered staff and guards, broke into a safe with a drill and got away with about R105m, most of which has not been recovered.

They also kidnapped warehouse staff by forcing them into a vehicle and taking them to unknown location, where they tried to kill them by forcibly administering an unknown toxic substance.

The 13 robbers — also including a former captain in the Directorate for Priority Crime Investigation (Hawks)‚ Bhekani Welcome Gcabashe‚ 48 — were jailed in February 2018 by the Mpumalanga high court in Delmas.

The charges against them included conspiracy to murder‚ robbery with aggravating circumstances‚ kidnapping‚ attempted murder and malicious damage to property.

The police minister’s initial defence when Lloyd’s sued was that the contracts between SBV and the banks whose money was stolen limited the security company’s liability.

This meant Lloyd’s had not incurred liability to compensate SBV, and had therefore not suffered losses for which the minister was liable, the minister argued in court papers. He also argued that he could not be vicariously liable for the robbery.

Shortly before the trial was due to start in October 2019, however, he tried to change his defence. Having been refused permission to do so, he approached the appeal court.

It involves an allegation that SBV is vicariously liable for a theft from itself.

—  Acting judge of appeal Glenn Goosen

In a judgment written by acting judge of appeal Glenn Goosen, the court rejected the minister’s argument that SBV should be Lloyd’s target because its Witbank security and compliance officer, Gift Nkosi, was part of the robbery gang.

Nkosi’s involvement meant SBV participated in the alleged illegal conduct and was a joint wrongdoer who intentionally planned and perpetrated the robbery which allegedly caused damages to the company, the minister argued.

But Lloyd’s correctly argued “no basis existed to attribute Ms Nkosi’s intentional and unlawful conduct to SBV”, said Goosen, adding that a “significant problem” with the minister’s proposed argument was that “it involves an allegation that SBV is vicariously liable for a theft from itself”. This was a contradiction in terms.

Goosen also dismissed the minister’s proposed argument that he and SBV were “joint wrongdoers in relation to the robbery”.

He said: “I accept that Ms Nkosi and the two policemen, together with other members of the gang, were joint wrongdoers ... but that does not mean that their respective employers are joint wrongdoers on the basis of vicarious liability for their actions.”