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[2016] ZASCA 181
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Mahlalela v S (396/16) [2016] ZASCA 181 (28 November 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 396/16
In
the matter between:
DANIËL
MAHLALELA
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Mahlalela
v S
(396/16)
[2016] ZASCA 181
(28 November 2016)
Coram:
Shongwe,
Van Der Merwe and Mocumie JJA and Dlodlo and Potterill AJJA
Heard:
3
November 2016
Delivered:
28
November 2016
Summary:
Criminal
Law – murder and robbery with aggravating circumstances:
whether State proved beyond reasonable doubt that the appellant
was
one of three attackers who robbed and killed the deceased –
circumstantial evidence: whether sufficient for a finding
of guilty.
ORDER
On
appeal from:
Gauteng
Provincial Division of the High Court, Pretoria (Smit J sitting as
court of first instance, Circuit Court, Secunda):
1
The appeal is upheld.
2
The order of the court a quo is set aside (only in respect of the
appellant) and substituted with the following:
‘
Accused
3 is found not guilty and discharged on all counts.’
JUDGMENT
Dlodlo
AJA (Shongwe, Van Der Merwe and Mocumie JJA and Dlodlo and Potterill
AJJA concurring):
[1]
The appellant was charged with two other persons before the court a
quo sitting at Secunda. The appellant was accused 3 in the
proceedings before the court a quo. All three faced charges of
murder, robbery with aggravating circumstances and possession of
a
firearm (a .22 revolver) with an unknown number of ammunition.
[2]
On 1 November 2000 the appellant was convicted of murder and robbery
with aggravating circumstances. He was sentenced to life
imprisonment
on the murder charge and 25 years’ imprisonment on the robbery
charge. The appellant unsuccessfully applied
for leave to appeal
against both conviction and sentence. The appeal against both
conviction and sentence before us is with the
leave of this court.
[3]
The appellant pleaded not guilty to the charges preferred by the
State against him. He did not disclose the basis of his defence
as
envisaged by s 115(2) of the Criminal Procedure Act 51 of 1977 (the
CPA). He exercised his right to remain silent as enshrined
in the
Constitution. The prosecution called its witnesses and upon closure
of its case an application for discharge in terms of
s 174 of the CPA
was made on the appellant’s behalf. This was, however,
dismissed by the court a quo. The appellant elected
not to testify
and closed his case. Counsel for the appellant contended that the
State failed to prove beyond reasonable doubt
that the appellant
robbed and killed the deceased or that he acted in common purpose
with the others to commit these offences.
It was also submitted that
the appellant was neither pointed out nor identified by the witnesses
during the identification parade.
[4]
It is common cause that the only direct evidence relied on by the
State, concerning the involvement of the appellant in the
offences
charged, is that of Mr Mandla Boy Charlie Mabena (Mabena). The
latter’s evidence, as far as it concerns the appellant,
is
criticised and labelled as unsatisfactory by the appellant’s
counsel.
[5]
In its heads of argument the State argued that the failure by the
appellant to testify exposed him to what obtained in
S v Boesak
[2000] ZACC 25
;
2001 (1) SACR 1
(CC) para 24 where the Constitutional Court held
as follows:
‘
The
fact that an accused person is under no obligation to testify does
not mean that there are no consequences attaching to a decision
to
remain silent during the trial. If there is evidence calling for an
answer, and an accused person chooses to remain silent in
the face of
such evidence, a court may well be entitled to conclude that the
evidence is sufficient in the absence of an explanation
to prove the
guilt of the accused. Whether such a conclusion is justified will
depend on the weight of the evidence. What is stated
above is
consistent with the remarks of Madala J, writing for the Court, in
Osman
& another v Attorney-General, Transvaal
,
when he said the following:
“
Our
legal system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a prima facie case, an
accused who
fails to produce evidence to rebut that case is at risk. The failure
to testify does not relieve the prosecution of
its duty to prove
guilt beyond reasonable doubt. An accused, however, always runs the
risk that, absent any rebuttal, the prosecution’s
case may be
sufficient to prove the elements of the offence. The fact that an
accused has to make such an election is not a breach
of the right to
silence. If the right to silence were to be so interpreted, it would
destroy the fundamental nature of our adversarial
system of criminal
justice.”’
[6]
The State also referred to
S
v Alex Carriers (Pty) Ltd en ‘n ander
1985
(3) SA 79
(T). It was argued on behalf of the State, by Mr Nel, that
at the end of the State’s case it was prima facie proved by way
of circumstantial evidence that (a) the appellant formed part of a
discussion regarding the attack and robbery; (b) an approximate
amount of R8 000 was robbed from the deceased; and (c) the appellant
and accused 2 made deposits of R2 000 each into their respective
bank
accounts.
[7]
Mr Nel was constrained to emphasise that the appellant and accused 2
each made deposits of R2 000 into their respective bank
accounts on
the same day at the same bank and with the same teller. According to
Mr Nel, because of the failure by the appellant
to testify at the end
of the State’s case and explain the source of the money evident
on the deposit slips, the prima facie
case became proof beyond
reasonable doubt that the appellant was complicit in the offences
committed.
[8]
I briefly recast the facts established by the evidence. It is common
cause that one Stefaans Sifiso Mahlangu (Mahlangu) witnessed
the
shooting of the deceased and he saw two persons running away from the
scene. One of these two persons carried a firearm. Mahlangu,
in an
identification parade, identified the two persons he had seen
committing the crime as accused 1 and 2 respectively. It is
common
cause that two witnesses, Perley Sheila Klopper and Essak Natalwalla
testified that there were in fact three persons involved
in this
matter. After shooting the deceased, one of the attackers snatched
the money bag. It is common cause that the money bag
contained R8 000
in cash and R10 000 in cheques.
[9]
Mabena testified that while at Sporo’s Shebeen together with
his girlfriend and the appellant, accused 1 and 2 subsequently
arrived there. A story was told to Mabena by accused 1 that a
butchery was going to be robbed and that in the event of anyone
resisting, accused 3 (the appellant) would produce a firearm and
shoot that person. Mabena repeatedly made it clear that when the
story was told to him he was not sure if the appellant and accused 2
were present. He stated that he thought they were outside.
He added
that he cannot remember clearly. When asked again if the appellant
was present when accused 1 mentioned that it was the
appellant that
was going to do the shooting and if the appellant heard this, Mabena
stated ‘wat ek nie goed onthou nie is
het hy dit gesê toe
hulle buitekant was of al binne. Ek kan dit nie goed onthou nie’.
(What I do not remember is whether
when he said that, they were
outside or inside. I cannot remember well.)
[10]
Strangely, the prosecution twisted the question and asked (seeing
that the appellant was tasked with the shooting) what was
his
reaction on that aspect? Mabena responded ‘hy het ingestem’
(he agreed). Lastly, Mabena testified that in prison
he was
threatened by accused 1. The latter told him that if he was going to
testify he must say that the man who shot the deceased
was the
appellant. It is common cause that accused 1 made a confession about
his involvement, in which he made mention of the other
participants.
It is common cause that upon the arrest of the appellant, two bank
deposit slips were found in his bedroom. These
(as mentioned earlier)
show a deposit of R2 000 each made into the accounts of the appellant
and accused 2 respectively.
[11]
It must be mentioned that concerning the appellant, the State
presented no eye-witness evidence, no forensic evidence, nor
any
self-incriminating utterances in its attempt to link him to the crime
of murder and robbery with aggravating circumstances.
The State
merely relied on Mabena’s evidence as well as the two deposit
slips found in the appellant’s bedroom. This
evidence was the
sole basis upon which the State sought (and ultimately secured) the
appellant’s conviction. In Mabena’s
testimony there is
one piece of evidence relied upon by the State. It consists of three
words ie ‘hy het ingestem’
(he agreed).
[12]
Mabena made it very clear in his evidence-in-chief that he could not
confirm whether the appellant was present in the shebeen
at the time
when accused 1 narrated to him how the robbery of the butchery would
be carried out. He repeatedly told the trial court
that he was not
certain if the appellant and accused 2 were present inside the
shebeen when the discussion took place. I find the
stance adopted by
the prosecution not only wrong but also unfair both towards Mabena
and the appellant. Having fully understood
that the witness was not
certain if the appellant was present in the discussion, it is unfair
to ask the witness whether he could
say for certain that the
appellant was in agreement with the proposed plan to rob the deceased
and shoot if necessary.
[13]
It is highly improbable that a person who is, at the crucial time,
outside and clearly not party to the discussion, would be
able to
agree to anything suggested. In my view this remains the
unsatisfactory portion of Mabena’s evidence. The above
difficulties one has with Mabena’s evidence were put to Mr Nel.
He contended that although he was not going to place much
reliance on
Mabena’s evidence, he would not concede its futility. In the
interest of justice, Mabena’s evidence that
the appellant
agreed to what was discussed must be discounted. No reliance can be
placed on this portion of Mabena’s evidence.
Mabena was clearly
led astray by the prosecution in saying that ‘hy het ingestem’;
which he again recanted when questioned
by the court a quo.
[14]
Following the submissions by Mr Nel, Mabena’s evidence and the
two deposit slips were used to provide circumstantial
evidence from
which the court was expected to draw the inference of guilt. It is
trite that in cases based on circumstantial evidence
the courts are
enjoined to follow the judgment in
R v Blom
1939 AD 188
at
202. The two ‘cardinal rules of logic’ relating to
inferential reasoning in cases based on circumstantial evidence
set
out in
Blom
are:
‘
(1)
The inference sought to be drawn must be consistent with all the
proved facts. If it is not, the inference
cannot be
drawn.
(2)
The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be
drawn. If
they do not exclude other reasonable inferences, then there must be a
doubt whether the inference sought to be drawn
is correct.’
[15]
The difficulty is that proved facts envisaged in
Blom
are facts proved beyond reasonable doubt. Intermediate inferences,
too, must be based on proved facts. Inferences may not be drawn
from
other inferences. See the article by Nicholas AJA in (E Khan (ed)
Fiat
Iustitia Essays in memory of Olive Deneys OD Schreiner
(1983) at 312 (1983) 312).
[16]
Simply put, circumstantial evidence provides a basis from which the
fact in dispute can be inferred. The salient question to
be answered
is whether the appellant was guilty of the crimes committed beyond
reasonable doubt. All circumstantial evidence depends
ultimately upon
facts which are proved by direct evidence. I agree that where a prima
facie case is proved against an accused person
in a case built and
resting upon circumstantial evidence to which a reply from an accused
would be expected, the fact that the
accused elects not to reply may
be a factor which, together with other factors in the case, leads to
an inference of guilt. However,
the weight to be attached to the
accused’s silence depends on the facts of the particular case.
See
S
v Letsoko
1964
(4) SA 768
(A). It is settled law that there is no onus on the
accused to prove his innocence. If an accused person remains silent,
as in
this case, the question remains whether the State proved the
offence(s) charged beyond reasonable doubt.
[17]
The appellant in this case may have taken the view that it is not
necessary to reply to the State case because guilt cannot
necessarily
be inferred from the proven facts. See
R
v Ismail
1952
(1) SA 204
(A) at 210 and
Letsoko
at
776B-D. Silence cannot and must not be used to supplement the State’s
case where there is no evidence upon which a reasonable
person would
convict. See
S
v Francis
1991
(1) SACR 198
(A) at 203I.
[18]
In
Boesak
the
Constitutional Court having stated that an accused person who chooses
to remain silent in the face of evidence calling for an
answer, runs
the risk that the court may well be entitled to conclude that the
evidence is sufficient for a finding of guilt, warned
that whether
such a conclusion is justified will depend on the weight of the
evidence.
[19]
I am persuaded that the State did not prove beyond reasonable doubt
that there was a factual basis entitling the trial court
to draw
inferences either intermediate or otherwise. The fact that two
deposit slips evidencing the deposit of R2 000 each into
the bank
accounts of the appellant and accused 2 does not go far enough to
assist the State. The discovery of these deposit slips
hardly
satisfies the first rule of logic in
Blom
at
paragraph 14 above. There is a host of reasonable inferences to be
drawn from the discovery of these deposit slips. The appellant
may
have been to the bank and accused 2 could have given him money and a
deposit slip to bank for him as well, and he would get
his stamped
deposit slip later on. A third party may have done the banking for
these two and returned the deposit slips to the
appellant. There is
no mystery in the fact that the deposit was done on the same date and
with the same bank and presumably at
the same teller. Of course this
raises a suspicion. It does not follow, however, that the deposited
money on that day into the
accounts of the appellant and accused 2
belonged to the deceased, who was robbed of R8 000 in cash.
[20]
If it were to be accepted that these deposit slips constitute a fact
from which an inference of guilt can be drawn, that would
stretch
inferential reasoning too far. It bears restating that, for an
inference to be permissible, it not only had to be based
on proved
facts, but also had to be the only reasonable inference from those
facts, to the exclusion of all other reasonable inferences.
The
ultimate question is whether, in the light of all the evidence
adduced at trial, the guilt of the appellant was established
beyond
reasonable doubt. See
S
v Ramulifho
[2012]
ZASCA 202
;
2013 (1) SACR 388
(SCA) para 7;
S
v Hadebe & others
1998
(1) SACR 422
(SCA) at 426f-h. In deciding whether to convict or
acquit an accused the court is obliged to adopt a correct approach.
In
S
v Chabalala
2003
(1) SACR 134
(SCA) at para 15 the court held that the correct
approach is ‘to weigh up all the elements which point towards
the guilt
of the accused against all those which are indicative of
his innocence, taking proper account of inherent strengths and
weaknesses,
probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour
of the state as to exclude any reasonable doubt about the
accused’s guilt’.
[21]
Clearly, the trial court relied on the doctrine of common purpose in
convicting the appellant of murder and robbery with aggravating
circumstances. It is established law that for a finding of common
purpose to be made, a number of evidential requirements have
to be
met by the State. Should any of these requirements not be satisfied
beyond reasonable doubt, the prosecution fails. These
requirements
are authoritatively set out in
S
v Mgedezi & others
1989
(1) SA 687
(A) and need not be repeated.
[22]
The trial court was under a duty to evaluate the evidence against the
appellant separately and individually in order to determine
whether
each of the elements of the doctrine of common purpose had been
proved by the State, beyond reasonable doubt. It also had
a duty to
evaluate the evidence against the appellant separately and
individually to determine whether the State had proved beyond
a
reasonable doubt all of the elements of each offence charged.
See
S
v Jama & others
1989
(3) SA 427
(A) 436I–J;
S
v Thebus & another
[2003] ZACC 12
;
2003
(2) SACR 319
(CC) para 45;
S
v Le Roux & others
2010
(2) SACR 11
(SCA).
[23]
I accept that a very strong suspicion was created against the
appellant by the discovery of the two bank deposit slips. Suspicion
remains a suspicion in our law. No person may be convicted on the
basis of a suspicion, no matter how strong. I conclude that no
factual foundation exists upon which the appellant’s conviction
could conceivably be sustained, either on the basis of inferential
reasoning or on the basis of common purpose. In view of the
conclusion I have reached, it is not necessary to deal with sentence.
[24]
In the result, I make the following order:
1
The appeal is upheld.
2
The order of the court a quo is set aside (only in respect of the
appellant) and substituted with the following:
‘
Accused
3 is found not guilty and discharged on all counts.’
________________________
D V Dlodlo
Acting
Judge of Appeal
APPEARANCES
For
the Appellant:
L M Manzini
Instructed by:
Pretoria Justice
Centre, Pretoria
Bloemfontein
Justice Centre, Bloemfontein
For
the Respondent:
G C Nel
Instructed by:
Director of Public
Prosecutions, Pretoria
Director of Public
Prosecutions, Bloemfontein