A pair of seemingly wealthy July 2021 unrest looters have failed in their bid to avoid culpability with a ruling that while they were stopped at a civilian roadblock and detained by members of the public, this evidence could still be used against them at trial because “these were not normal times”.
Msizi Sithole from Glen Anil, and Nkosikhona Maphumulo from Morningside — both 30 — are standing trial on one count of theft relating to the events of July 13 that year when they were stopped, at about 9pm, at a roadblock under the control of rugby referee Stuart Berry, near Gateway shopping centre.
Sithole and Maphumulo were driving a Jeep Rubicon, which costs between R1.2m and R1.3m.
In the back was a Samsung washing machine, a desk fan, a charcoal kettle braai, a deluxe yoga mat, some chairs, a BMX bike and a coffee cup set, allegedly looted from Makro.
Sithole, who was Ubuntu Wealth CEO at the time, was suspended after his arrest, while his alma mater, Hilton College, threatened to expel him from its Old Boys societies.
At the time, former old boy Michael Hay, who posted videos and pictures of the arrest on Facebook, said: “Qhawe Sithole, I told you I was going make you famous for looting and stealing. You in your wrangler with a washing machine, bicycle, braai stuff, bar stool and alcohol... It’s not acceptable- you are the problem! You are the ROT.
“Ubuntu Wealth how can you give advice when your have no values! You [are] a disgrace to your old school Hilton College. You [are] a disgrace to FSCA South Africa [Financial Services Conduct Authority] you [are] a disgrace to our wonderful country. I can’t believe you did what you did!”
In a statement of agreed facts, which is an exhibit before the court, it is common cause there were no police officers present at the roadblock when they were pulled over.
Sithole and Maphumulo were not informed of their constitutional rights and Berry inspected the Jeep without a warrant.
They were taken to Umhlanga by Berry and other civilians and were questioned by an armed Marshall Security guard, again without being informed of their constitutional rights. They were “arrested” by Berry, who cable-tied their hands.
In March this year, at the start of their trial before Durban regional court magistrate Garth Davis, both pleaded not guilty and through their legal team, attorney Carl van der Merwe and advocate Christo van Schalkwyk, submitted that all evidence derived from the search and seizure was unconstitutionally obtained.
It was submitted all civilian roadblocks were unlawful and any evidence obtained through these “violations” must be excluded.
But magistrate Davis has ruled against them, referring to the “magnitude of the situation” at that time, apparently sparked by the imprisonment of former president Jacob Zuma for contempt of court.
He said national highways were blocked, trucks and trailers were set alight and shopping centres, factories and business parks were looted and set alight on an unprecedented scale.
“The response of the police was a weak one and civil society mobilised in response, unfortunately with mixed results,” he said.
One of the chosen strategies was for civilians to man checkpoints and roadblocks, sometimes with the knowledge and approval of the police, sometimes not.
The defence team, he said, had correctly characterised their application as being about “the fine line between citizens acting in a form of self-defence or necessity and citizens taking the law into their own hands and becoming vigilantes”.
Davis said it was not in dispute the roadblock was unlawfully constituted and Sithole and Maphumulo were stopped, searched and detained by members of the public who had no legal authority to do so.
But whether such evidence could be admitted had to be decided on a case-by-case basis.
“Taken out of context, the decision [to allow the evidence] would be straightforward,” Davis said.
The reality is Durban was not a normal functioning city, but a city ravaged by violent protests and massive looting, seemingly with impunity as the SAPS were either unable or unwilling to curtail the looting.
— Magistrate Garth Davis
“The setting up of checkpoints by civilians at this time was unlawful. There is therefore a clear breach of the accused’s right to freedom of movement, rights to privacy which includes the right not to have your property searched and possessions seized.
“The reality is Durban was not a normal functioning city but a city ravaged by violent protests and massive looting, seemingly with impunity as the SAPS were either unable or unwilling to curtail the looting.
“The breakdown of the rule of the law in the face of anarchic protest was very real.”
Davis referred to the findings of an expert panel appointed by President Cyril Ramaphosa, which confirmed “there was a sense of deep bewilderment at the absence of police at a time when communities needed them most”.
The panel said by the end of that week, about R50bn had been wiped off the South African economy and the image of South Africa as a stable country was marred.
Davis said in any other context, stopping the Jeep and questioning Sithole and Maphumulo might be “even offensive”, but in the context of the widely publicised looting taking place at Cornubia and Riverhorse, it could be seen as perfectly reasonable to ask them for proof of purchase.
“In the agreed facts there is no suggestion of torture, threats or abusive behaviour against the two accused. The conduct of those at the checkpoint was not motivated by a desire to disregard the rule of law but actually to support the rule of law. It was motivated by good motives and not bad motives,” he said.
Davis said the admission of the evidence would not render the trial unfair or bring the administration of justice into disrepute “on the contrary, the exclusion of the evidence would undermine the public’s faith in the criminal justice system”.
“I do not believe the drafters of the constitution intended absurd results — to disallow crucial evidence obtained without mala fide intent.”
He said his ruling should not be seen as “condoning self-help or vigilantism” but not to allow the evidence gathered at this roadblock would undermine the rule of law.
The trial will continue in September when Berry is expected to testify.
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