Seven years ago Thuba Sithole was accused of committing an armed robbery. Two years after that he was convicted and sentenced to 15 years in Leeuwkop Prison. But the story uncovered by the Wits Justice Project shows shoddy police work, dodgy eyewitness testimony, a dismissive magistrate and a careless defence lawyer resulted in an innocent man being put behind bars. By RUTH HOPKINS and KYLA HERRMANNSEN.

In 2007, Thuba Sithole’s life was very structured. The then-23-year-old woke up every morning to walk an hour to his job at the Pick ‘n Pay store at the Bright Water Commons mall in Randburg, Johannesburg. When he knocked off work, around 7pm, he would walk back from the store to his uncle’s flat in Windsor East where he lived during the week. He would get home just in time to catch the soap Generations on television. Every month, he sent R500 – one fifth of his salary – to his one-year-old daughter who lived in Mpumalanga with her mother, and he would visit her twice a month. According to his uncle, Elias Nyalungu, Sithole’s life revolved around work, church and his daughter. He hardly drank and didn’t smoke. Whenever he headed out with his best friend and Nyalungu’s son, Mussa, they were back home before 8.30pm.

But one night, on 31 August 2007, Sithole did not come home. His uncle was instantly alarmed. “When he phoned me and told me he had been arrested, I was shocked,” he says.

Sithole was walking down Elise Road in Randburg when a male and female police officer stopped him. The man pointed a gun at him. “Tell me where your friends are’, she asked me,” said Sithole, who is currently serving a 15-year sentence at Leeuwkop prison in Bryanston.

Sithole was accused of playing a part in an attempted hijacking or ‘driveway robbery’ on nearby Gemsbok Road in Robinhills. Two young women, Shannon Sutton and Simone Almond, pulled up outside their friend Lisa Kennedy’s house in Gemsbok Road at approximately 7.15pm in the evening to fetch her en route to a live music gig in Kempton Park. While the young women were waiting for Kennedy in the driveway, three men came running towards them, one wielding a firearm. The one man pushed Sutton to the ground and held a gun to her head, while the two other men rummaged through her handbag to find her car key. But, despite locating the car key and turning the key in the ignition, they were unable to release the gear lock and could not drive away. Kennedy’s stepmother saw the commotion from inside the house and called the police who arrived at the scene just minutes later. The three men dropped the car keys and ran away on foot in the direction of Fountainbleu, carrying Sutton’s handbag.

Kennedy and Almond got into one of the police vans to assist the police in pursuing and identifying the suspects. The young women and the police saw three men standing on the pavement at the corner of Blesbok and Eland Road. The men started running in the opposite direction immediately after seeing the police van. The police officers then got out of the van and gave chase on foot.

Sithole and his co-accused, Ayanda Nene, were caught, handcuffed, put into the back of the police van and later detained at the Linden police station. The police never found the man in possession of the gun, who was described as wearing a white pinstriped shirt.

Sithole and Nene were charged with armed robbery, their bail application was denied and on 6 December 2007, they were brought before a magistrate at the Randburg Magistrate’s Court. The magistrate struck the case off the roll because Sutton, one of the three witnesses, was in the United States at the time. Kennedy, however, testified before he threw the case out.

“The magistrate said the suspects would not spend Christmas in jail if the main witness was not present. When he said that, a group of men in the public gallery of the court jumped up and shouted. I looked around and saw the man who had held the gun and who got away. I pointed this out to the police officers who were present, but they said there was nothing they could do,” Kennedy says.

Sithole thought this was the end of the matter and he went back to Pick ‘n Pay where he was rehired as a cook in the deli department. Ephraim Maluleke was his manager at the time. “Thuba was a quiet, polite guy. He was always on time and pleasant, never rude. He was a good employee. None of my colleagues thought he had done it. The manager who rehired him knew he was arrested for an armed robbery; it says a lot that they took him back.”

Sithole went back to his structured life and in his spare time, he followed a course to become a security officer, a job that would make him more money. Part of the certification process required by the Security Officers Board (SOB) is a background check for criminal records. “I thought the robbery case had been finalised, but they told me that there was still a case open against me,” said Sithole. What Sithole didn’t know at that point was that Sutton had returned from the US, which reopened the case for prosecution. When Sithole walked into the office of the investigating officer, detective Mr Rigardo Peach, on 11 April 2008 to find out what was going on, he was arrested on the spot.

Meanwhile, the other suspect, Nene, had vanished into thin air. The police did not manage to track him down, so on 24 February 2009 Sithole appeared alone before magistrate Phanuel Mudau at the Randburg Magistrate’s Court. And this is where plot thickens.

Sithole, represented by a Legal Aid attorney, Nasima Khan, pleaded not guilty. First on the stand was Sutton who described the events of the attempted robbery and then said of Sithole, “I think the gentleman with the red shirt is the gentleman here.” But later, when pressed to give a clear answer about Sithole’s role in the crime, Sutton admitted, “I cannot say beyond a shadow of a doubt that this is him. I do not know.”

Almond was up next. She testified: “…I do not know what to say but I just recognise him.” She said that she could not remember what happened exactly five times, explaining that it was too long ago and she was in shock. The third complainant, Kennedy, also testified that the man in the dock was in her mind the same red-shirted man from the scene of the crime, but she was equally unspecific in her description of Sithole.

The arresting officer, Craig Cowey, testified: “The one suspect that I caught ran down Eland road. (…) I asked my suspect where he was going to and he said he had just come back from Pick ‘n Pay at the Waterfront where he works.” However, Cowey told the Wits Justice Project a different story. “I chased him for half an hour; we were jumping over fences and walls, running through a field, I briefly lost sight of him. I was catching my breath when I saw him again. He was calmly walking down the street, towards me.” Cowey said he put a hand on Sithole’s heart to check his heart rate. Because Sithole was sweating, Cowey concluded he must have been the guy who had been running away from him.

Sithole, however, doesn’t remember being arrested by Cowey at all. He testified he was indeed walking down the road calmly, but reiterated what he told the court, that he was “arrested by a female and male officer. The man pointed a gun at me. They handcuffed me and brought me to a police van and that was where I saw Cowey, who started asking me questions.” Almond and Kennedy also remember a woman police officer being present at the scene of the arrest.

The statements of the three young women are riddled with inconsistencies. One of them claimed in her police statement that Sithole was wearing a red shirt, but after she had seen him in court in 2007, she changed it to a Pick ‘n Pay T-shirt. When asked why she thought it was him, one of the women answered: “Because the arresting officer as well as Simone and Lisa (the other complainants) are sure it is him.” One of the women said he had short hair, while the other said he was bald. One said he was wearing tracksuit bottoms, the other was convinced he wore jeans.

But these inconsistencies are not as alarming as their lack of certainty that Sithole was actually involved in the robbery and was not just a random guy walking down the street. Sutton, the first witness, said in court, “I cannot say beyond a shadow of a doubt that it is him.” Now, five years after the court case took place, Kennedy has admitted that she was uncomfortable with her statement. “I’ve always wondered if he had really done it. I wasn’t 100% sure it was him, but it was a traumatic experience. I was very young and I was afraid.” All three girls were matriculating at the time of the robbery.

Sithole’s lawyer, Kahn, failed to bring up the most glaring discrepancy in the case: Sithole could never have covered the distance from his work to the scene of the crime in a mere 15 minutes. The crime took place at approximately 7.15pm in the evening and Sithole left his place of employment, the Pick ‘n Pay at Brightwater Commons, at 7.06pm, which was confirmed by his employer. It takes 45 to 60 minutes to walk from Pick ‘n Pay to the scene of the crime in Gemsbok Road. The 30-minute chase officer Cowey had conveniently left out of his testimony before the court coincides with Sithole turning the corner into Elise road around 7.45pm.

There was no effort made to ascertain Sithole actually was employed by Pick ‘n Pay, despite his repeated requests to the police to take him to Pick ‘n Pay.

His manager, Dean Dekanah, wrote a letter stating that Sithole left the store at 7.06pm, but the magistrate dismissed this evidence because while the letter did have a Pick ‘n Pay stamp on it, it was not printed on an official letterhead.

Mudau was unperturbed by, and Kahn did not protest the fact that no stolen goods were found on Sithole, nor were there any of his fingerprints on Sutton’s car. If the crime occurred as described, Sithole’s fingerprints would have been all over Sutton’s car and her car keys – as Sithole allegedly opened the door, got into the car and in vain tried to start it and release the gear lock. Sutton and Almond told the Wits Justice Project that they distinctly remembered a police officer dusting the car for fingerprints on the night of the crime but no record is reflected anywhere in the police docket nor was fingerprint evidence – or rather the lack thereof – brought up by the magistrate or defence attorney during the 2009 court case.

In accordance with South African case law, if a trial hinges on a single eyewitness testimony – and not on forensic evidence such as DNA or fingerprints or CCTV camera footage of the accused – the evidence of the eyewitness should be treated with “extreme caution”. Though it is possible to convict an accused on single witness testimony the testimony must be “satisfactory” in every material respect and every effort should be made to test the witness testimony for any holes or weak spots.

Outside the witness testimony of two impressionable girls, one of whom has admitted she was never certain it was him, there is no concrete hard evidence that irrefutably links Sithole to having committed the attempted robbery. His defence attorney, Kahn, did not attempt to secure this evidence.

With legal representation this weak, magistrate Mudau could gloss over the glaring discrepancies in the evidence. “I am satisfied under the circumstances that the state has managed to prove its case against the accused beyond a reasonable doubt. On the other hand I do not find that the accused’s version is reasonably possibly true.” Mudau found Sithole guilty of committing robbery with aggravating circumstances and sentenced him to 15 years behind bars.

Sithole’s guilt was self-evident in Mudau’s view because: “I find it more than a coincidence that accused would have in his cell phone the name of Ayanda. Ayanda was the man (…) who was arrested at the same time that he was.” It didn’t bother the magistrate that no effort was made to phone this Ayanda or to submit phone records as evidence. The mother of Sithole’s child is called Ayanda. “Thuba is a good man. When he visited he always brought food and clothing for our child. And every month he sent us R500,” she said.

Mudau did not grant Sithole a leave to appeal, but his Legal Aid lawyer, Constance Xamsama, petitioned the South Gauteng High Court. Leave to appeal was granted “on the grounds of possibility of error of identity”. Judge Neels Claassen, however, dismissed the appeal on 31 May 2011, stating: “The accused placed himself on the scene where the arrest took place (…) the state has proven overwhelmingly the guilt of the accused.” Claassen found no problem with the magistrate’s comment on Sithole’s phone contacts, the glaring inconsistencies in the witnesses’ statements or the fact that Sithole never could have reached the crime scene in time to commit the crime.

Lumkani, Sithole’s half-brother, lived with him at his father’s house in Joubert Park, when he was not working at Pick ‘n Pay. “Thuba is a simple man. He was always trying to fend for himself. Everyone in my family works; my father was a security guard, my mother works in a factory in Kempton Park. Thuba worked since he was 17, in a bakery, at a barber, various jobs. Whenever he was out of a job, he would be working to find a new one.”

Sithole has wasted five years in prison for a crime he did not commit. DM

Ruth Hopkins is a journalist for the Wits Justice Project.

At the time of writing Kyla Herrmannsen was a Wits Justice Project intern. She is now a television producer for Health-e News Service

Megan Geldenhuys of the Center for Applied Legal Studies (CALS) assisted the Wits Justice Project in accessing relevant court documents in this case

Main photo: Lewkop prison (Kyla Herrmannsen)