AN ex-Hawks captain jailed for his involvement in one of the country’s biggest heists which netted a gang of over a dozen robbers over R100 million, is appealing his conviction and sentence.
Bhekani Gcabashe, a former captain previously attached to the Hawks’ Mpumalanga organised crime unit, left the SA Police Service in 2011, three years before the robbery at a SBV Services cash depot in eMalahleni, where two security guards were overpowered and robbed of their firearms.
In February 2018, Gcabashe, now in his 50s, two of his former colleagues, Warrant Officer Lekele Lekola and Constable Tamsanqa Kubheka, were among 13 men sentenced to 20 years direct imprisonment for the April 2014 robbery.
Only R6m of the more than R100m was recovered.
The appeal came after the former Hawks officer appeared in the North Gauteng High Court earlier this month, in a bid to force mobile telecommunications company MTN to provide him with copies of his cell phone records for the period between April 20, 2014 and April 29, 2014. The robbery happened on the night of April 27 that year.
MTN released the records to the National Prosecuting Authority during the trial but Gcabashe maintains that they were either tainted or fabricated.
He also claims he was wrongfully charged and convicted of the robbery and now wants access to his itemised billing records for the days leading up to and after the commission of the crime, as he is suspicious of the cell phone records that led to his conviction and sentence.
Gcabashe intends to compare the records from MTN with those used at trial to determine their accuracy.
He also insists that he was not part of the robbery crew and was not in contact with any of the co-accused before, during, and after the robbery,;nor was he was found in possession of the money that was stolen.
Gcabashe’s wife backed him in court and the number appears in the bank accounts he held before his incarceration.
MTN denied that Gcabashe had shown any relationship with the company entitling him to be its customer.
According to MTN, Africa's largest mobile network operator, regulator, the Independent Communications Authority of SA regulations and the Electronic Communications Act, require that communications-related information to be stored for a maximum period of three years; Gcabashe’s application came too late and MTN no longer has the information he wants in its possession.
Gcabashe, who represented himself in the matter, was unsuccessful in his bid as Judge Jabulani Nyathi dismissed his application on March 6.
The judge found that Gcabashe had not made out a case that he was entitled in law to the requested information, and his application was not legally competent due to the lapse of time.
Attempts to contact Gcabashe who is currently incarcerated at the Zonderwater Correctional Centre in Cullinan, east of Tshwane, were unsuccessful.
Gcabashe’s failed bid comes as Police Minister Bheki Cele was ordered to pay security company SBV Services’ insurer, Lloyd's of London, nearly R94m in relation to the robbery, which involved two officers who were serving at the time, Lekola and Kubheka.
Lloyd's of London had undertook to indemnify SBV for losses of cash under the control of the security firm on its clients’ behalf, including losses sustained due to robbery while in transit or at rest anywhere in the country.
SBV has contracts with four of the country’s major banks – Standard Bank, FirstRand, Nedbank and Absa – that are also shareholders in the company, to provide cash management and retail cash processing services.
The insurer accused Lekola and Kubheka of knowingly participating in the planning, directing and executing the robbery, then preventing its detection and proper investigation and frustrating lawful attempts to recover the stolen cash.
Lloyd’s of London told the court that the police minister - at the time Nathi Mthethwa - was vicariously liable to each of SBV’s clients who suffered losses due to the robbery, and argued that an employer could be held liable for acts an employee committed in the course of employment.
The minister stated that Lekola and Kubheka were acting on a frolic of their own and he could not be held vicariously liable for their participation in the robbery.
However, North Gauteng High Court Judge Natvarlal Ranchod disagreed and found the minister liable.
”When the intentional criminal deviant conduct of the police is closely connected to the minister’s business he may be held vicariously liable in a delictual claim for damages,” the judge found on March 4.
Cele’s spokesperson Lirandzu Themba did not respond to questions from the Sunday Independent on whether or not the judgment will be appealed.