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[2021] ZAGPJHC 492
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Shabangu and Another v S (A353/2017) [2021] ZAGPJHC 492 (5 March 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A353/2017
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
DATE
5/3/2021
In
the matter between:
SHABANGU,
MISHACK MBULWO
First Appellant
SHELEMBE,
MBULENI
Second Appellant
and
THE
STATE
Respondent
JUDGMENT
Delivered:
By transmission to the parties via email and uploading onto Case
Lines the Judgment is deemed to be delivered. The date for hand-down
is deemed to be 05 March 2021.
A.
INTRODUCTION
[1]
The first and
second appellants were arraigned and appeared in the Regional
Magistrates Court held in Alexandra and faced the following
charges.
(a)
Count 1:
Robbery with aggravating circumstances in terms of section 1 of the
Criminal Procedure Act 51 of 1977 (“CPA”)
read with the
provisions of section 51 of the Criminal Law Amendment Act 105 of
1997 (“CLAA”).
(b)
Count 2:
Kidnapping.
(c)
Count 3:
Robbery with aggravating circumstances in terms of section 1 of the
CPA read with section 51 of the CLAA.
(d)
Count 4:
Kidnapping.
(e)
Count 5:
contravention of section 4(1) (a)) of the Firearms Control Act 60 of
2000 (“FCA”) read with section 51 (2)
of the CLAA.
(f)
Count 6:
contravention of section 90 of the FCA.
[2]
Counts 1 and 2
related to the robbery and kidnapping on 1
st
May 2015 where Sipho Malese was robbed of his VW Golf 7 GTI motor car
(“VW Golf”) and deprived of his freedom of movement.
[3]
Counts 3 and 4
related to the robbery of Mr Mandla Nkomo and Mr Phineas Chipu who on
4
th
May 2015 were robbed of an Isuzu truck and its contents and deprived
of their freedom of movement .
[4]
Counts 5 and 6
related to the possession of an AK47 and ammunition during the
execution of the robbery and the kidnappings in counts
3 and 4.
[5]
Both appellants were found guilty of counts 1 to 4, with accused 2
also, in addition,
being found guilty of counts 5 and 6. They were
sentenced to an effective period of 20 years imprisonment on the 16
th
October 2017 by the Regional Magistrate’s Court held in
Alexandra, Johannesburg.
[6]
On the 1
st
May 2015, Sipho Malese was returning to his
home at around 3.30 in the morning. He was approached by three men
armed with a firearm
and they forced him into his VW Golf motor car
and made him sit in the back seat where he was ordered to lie down
and face downwards.
The three robbers drove away with him. After
being tied up with his shoelaces, he was released in the veld in
Eesterus, east of
Pretoria. The robbers left with his motor car. He
identified his recovered motor car on the 6
th
May 2015.
[7]
Mandla Nkomo and Phineas Chipu were lawfully in possession of an
Isuzu delivery truck
containing Samsung products during the morning
of the 4
th
of May 2015. They were stopped at Glen Austin
by what appeared to be the metro police officers, who then robbed
them of the Isuzu
truck and its contents. The robbers used a BMW and
the VW Golf which was robbed from Malese in the execution of the
Isuzu truck
robbery.
[8]
Nkomo was forced into the BMW and Chipu into the VW Golf and they
were both ordered
to lie down at the back seat of each vehicle. Nkomo
was released from the BMW by the armed robbers at around 13h00 that
afternoon
in Olievenhoutbosch, Midrand.
[9]
The VW Golf was spotted by law enforcement officers on the N3 route
and they gave
chase. The VW Golf had four occupants including Chipu,
the other three were robbers.
[10]
During the chase, the VW Golf came to a standstill after colliding
with a palisade fence at a
construction site in Linbro Park. The
three robbers alighted from the VW Golf and fled on foot to evade
arrest. Chipu remained
in the VW Golf and it should be stated that he
had lied down as ordered during his ordeal.
[11]
One of the robbers who alighted from the VW Golf was in possession of
an AK 47 assault automatic
rifle described in counts 5 and 6 to the
charge sheet.
[12]
The AK47 rifle was recovered in the vicinity of the VW Golf by Daniel
van Heerden, one of the
metro police officers who were in hot pursuit
of the VW Golf.
[13]
All the victims of the two robberies were not able to identify the
robbers. The appellants were
convicted on the evidence of two
witnesses who each linked each appellant to the charges.
B.
THE ISSUE FOR DETERMINATION
[14]
The only issue for determination is whether the State had proven its
case beyond a reasonable
doubt to sustain the convictions.
C.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
[15]
Counsel on behalf of the first appellant submitted that this appeal
raises six important issues
of law on merits, namely:
(a)
The single witness
(b)
Admissibility of a confessions/s admissions;
(c)
The requirement that the trial be fair
(d)
Discharge at the end of the state’s case in terms of section 17
of the CPA;
(e)
Bail pending appeal and
(f)
The presumption of innocence
These
six issues will be dealt with below but before we deal with them, we
need to summarize the evidence of each witness.
[16]
It has to be stated that when Chipu and Nkomo were robbed and
kidnapped, the alleged robbers
did not conceal their faces. Despite
this fact, Chipu and Nkomo were not able, as already stated before,
to identify the appellants
on two identification parades held. This
is understandable as they were ordered to lie down and not to look up
when they were both
sandwiched at the back seat of each car.
[17]
The conviction of the appellants was based on circumstantial
evidence.
D.
EVIDENCE
[18]
The State called Sipho Malese who testified about the robbery and
kidnapping that took place
on 1 May 2015 at about 3h30 in the
morning. He was not able to identify the robbers. He was, however,
called by the police to identify
his VW Golf on the 6
th
May 2015. His car was crashed by the robbers during the police chase.
He was not cross-examined because when he was robbed at gunpoint
and
kidnapped he was placed at the back seat of his car and ordered not
to look up by his assailants. He could not identify the
assailants.
His account of the events as they unfolded was unchallenged.
[19]
When Chipu testified, he also gave an account of how he was robbed of
the truck and its contents
and how he was ordered into the car and
instructed not to look up. When the chase happened, he was still told
not to look up by
the three assailants. He was able to remember that
three assailants ran out of the VW Golf after the crash. He remained
in the
car and later the police returned to the car with one of the
alleged assailants who had been shot, namely the first appellant.
Chipu was also arrested. He could not identify any of his assailants.
His evidence was also not disputed. The truck was eventually
recovered.
[20]
Mandla Nkomo, the driver of the truck, who was in the company of
Chipu was the third State witness
to testify. He testified in respect
of count 3 and 4 that on the 4
th
May 2015 at about
9h00-10h00, when he was driving an Isuzu delivery truck, he was
stopped by what appeared to be metro police and
robbed at gunpoint of
his truck. There were two cars involved in the robbery. The robbers
used the JMPD uniforms and after rifles
were pointed at him, he was
ordered to lay down on the ground. He was forced to drive the truck
and they came across a VW Golf
7. He was taken into a grey BMW and
still ordered not to look up. He was driven around for a long time.
Eventually, he was dropped
in the veld next to Olievenhoutbosch. The
truck was later recovered from another location.
[21]
The fourth witness to testify was Daniel van Heerden. He is an
employee of the Ekurhuleni Metro
Police, High Chase Unit. On the
morning of the robbery, he was called by his colleague, Officer Jacob
for backup at R21 Olifantsfontein.
They had information about the BMW
that was involved in a robbery. He heard police sirens and saw a SWAT
motor vehicle came past.
It was Officer Schultz who was in pursuit of
a white VW Golf. That is when Officer van Heerden also joined the
chase in pursuit
of the VW Golf which was travelling at a high speed.
[22]
Van Heerden testified that as they gave chase, the VW Golf drove into
a fence in Linbro Park.
Three occupants jumped out of the car and
started running away. He chased one who at the time was wearing a
black t-shirt and blue
jeans. He testified that the robber crossed
the road and he saw him throw away a rifle into the bush. He
estimated that he was
20 meters away. He then ordered the robber to
stop and when the robber complied, he proceeded to handcuff him. This
was the second
appellant. He walked him to the bushes where he had
seen him throw away a rifle moments earlier and found it to be an
AK47. At
first, he could not see him because of a building that was
between them but when he re-emerged, the second appellant still had a
firearm in his possession, an AK47.
[23]
Three individuals who alighted from the vehicle and ran away were
arrested, this included the
State witness Chipu. Van Heerden could
not identify the driver of the white VW Golf. Under
cross-examination, Van Heerden stated
that Schultz was the leader of
the chasing police cars. He described how he got to the other side of
the fence. Van Heerden conceded
that he lost sight of the second
appellant but stated that when he re-appeared, he still had a
firearm. It was put to the witness
in his evidence in chief that he
stated that he saw the second appellant throw away an AK47 rifle into
the bushes. He conceded
to this. It is not in dispute that the
firearm was recovered in the bush, about 10 metres away from where
Van Heerden was. Van
Heerden was challenged that the arrest did not
take place where he said it did but that the witness placed the rifle
in the bushes
intending to frame the second appellant and this was
denied.
[24]
The fifth State witness to testify was Mr Robert Schultz. He
testified that he was part of the
SWAT team. They were on the lookout
for a white VW Golf, a BMW, and a white Ford Fiesta with no number
plates and a truck which
were involved in a robbery. He testified
that on the morning the robbery had taken place the same white VW
Golf was spotted and
it indicated to turn left on the R101 road, that
is, Old Johannesburg road before Alexandra. At one stage, the VW Golf
overtook
another car on the barrier line.
[25]
He further testified that as the white VW Golf was picking up speed
he tested whether it was
registered on the NATIS system. The results
were negative which meant that the number plates were false. They
continued to pursue
the vehicle at high speed with sirens and blue
lights on. He realised that the white VW Golf was the same vehicle
that had been
robbed three days earlier at Moretele, Hammanskraal.
[26]
The VW Golf lost control and collided with a fence in Linbro Park.
Three men jumped out of the
vehicle and one remained behind in the
car. When he approached the car, he found that one man was lying down
in the back seat.
He identifies the witness as Chipu, the State
witness. The other suspects ran away, two to the far right, one t the
bush area.
He searched Chipu who told him he was the truck driver.
During that time Schultz heard gunshots being fired. Officer Maleka,
one
of his colleagues brought one of the suspects to the motor
vehicle and went back to look for the other suspect. The first
appellant
was brought back by Officer Maleka and had been shot.
Schultz told the trial Court that the first appellant asked him why
the driver
of the truck was not arrested and according to Schultz, he
said this freely and voluntarily. Schultz asked the first appellant
why and the response was that the robbery was a handover. He said the
truck driver handed the truck over and that it was not a hijacking.
This was denied by the first appellant. Schultz did not know who
arrested the second appellant.
[27]
Bongani Maleka testified as to the sixth State witness. He testified
that he was in a marked
metro police vehicle and uniform when the
incident took place. He corroborated the evidence of the chase of a
white VW Golf. The
VW Golf crashed into a fence and three suspects
jumped out of the car and he chased after them. He testified that the
second appellant
had a rifle in a bag which he had in his possession.
He testified that he fired a shot at the first appellant who then
fell. He
ran to him and proceeded to handcuff him. The first
appellant was taken back to Schultz. Maleka went back to look for the
second
appellant. At this stage it not likely that this witness did
not lose sight of the second appellant as he made his way back to
make a handover of the first appellant to Schultz. The trial Court
correctly accepted the proposition by Ms Mpeke on behalf of the
second appellant that he lost sight of the second appellant.
[28]
Maleka denied the first appellant's version that he was not in the
car. He also denied that the
first appellant was a job seeker at a
construction site. He confirmed that the clothing the first appellant
had on was the same
as in the photos under cross-examination. Maleka
revealed that the first appellant had a plastic bag that contained
muti, a balaclava,
and cell phones. Maleka denied that there was a
lunch box in the plastic bag.
[29]
Moela Makwa then testified as a photographer who compiled a report on
the firearm and the ammunition
which was handed in. His evidence was
not disputed and the State closed its case.
[30]
The appellants applied to be discharged at the end of the State’s
case. The application
was refused.
[31]
Having not offered a plea explanation and having exercised their
right to remain silent, the
appellants then testified in their
defence. Both appellants denied any role in robberies.
[32]
In his testimony, the first appellant denied he knew anything about
the VW Golf that was stolen.
He also denied the kidnapping charges.
He also denied that he had anything to do with the robbery of the
Isuzu truck and its contents.
He furthermore denied that he kidnapped
Nkomo and Chipu.
[33]
He further testified that he lives in Orchards, Pretoria. On the day
he was shot, he was a jobseeker
at the construction site. He
testified that there was a lot of dust and he could not see clearly
what was happening and that he
only heard shots being fired randomly
and he was also shot even though he had raised his arms to surrender.
He did not know why
he was shot.
[34]
In his testimony under cross-examination by the State, he said he had
visited the construction
site to look for work as a bricklayer and
tiler. Although he was a panel beater jobs were too hard to come by
as his customers
did not have the money to pay him. Furthermore, he
admitted that in relation to Orchards, Pretoria, Moretele,
Hammanskraal was
not that far as compared to a distance from
Johannesburg CBD to Pretoria.
[35]
The first appellant testified that he went to the construction site
due to information provided
to him by one Mr Mahlangu and Sipho. He
did not know Sipho’s surname. Mahlangu was from Vlaklaagte,
Kwa-Nadebele and Sipho
was from Moloto. He intended to call the two
witnesses. As a consequence, the case was remanded to 28 September
2017. When the
matter resumed, the first appellant, through his
counsel Mr Bapela, indicated that he had a death certificate for Mr
Mahlangu who
had died of natural causes. The other witness Sipho, so
said counsel for the first appellant at trial, was working somewhere
in
Burgersfort and could not attend court. No witnesses were called
to corroborate the version of the first appellant.
[36]
The first appellant also denied any knowledge of the AK47 rifles. He
denied that his fingerprints
were found on the VW Golf and then he
closed his case.
[37]
The second appellant also testified. He said that prior to his arrest
he was not working. He
testified that he was staying in Germiston and
that the arrest took place in Linbro Park, next to Alexandra. He also
said he was
looking for a job to mix cement at a construction site.
He arrived in Linbro Park at around 10h00 in the morning because the
area
has many factories. He lives in Germiston but upon being
confronted by the State in cross-examination about an address he gave
to the police in Joubert Park, Johannesburg, he conceded that he gave
three addresses as the police were not willing to accept his
Germiston address.
[38]
On the morning of his arrest, he was looking for a job when he heard
gunshots and saw people
running. He also started running and was
ordered by the police to stop. He complied and was arrested and taken
to a certain spot
where he was shown a gun which he was ordered to
pick up. He complied and was told he was under arrest for a robbery
that took
place on that day. He did not see the first appellant’s
arrest. He only saw him for the first time at the police station.
On
the day of his arrest, he had not spoken to anyone about the job. The
defence closed its case.
[39]
After considering the evidence the trial Court convicted both the
first and second appellants
for the robberies and kidnappings and
sentenced them to effective 20 years imprisonment term.
[40]
At the hearing of this appeal, Mr Shapiro on behalf of the first
appellant was critical of Mr
Bapela’s handling of the first
appellants' defence. He pointed out, after being allowed by this
court to file supplementary
heads of argument that Mr Bapela did not
do a good job of representing the first appellant at trial.
[41]
I disagree with Mr Shapiro. The record shows that at the instruction
of the first appellant,
Mr Bapela brought two recusal applications
against the presiding Magistrate. These applications were both
refused and reasons provided
for the refusals. The record of the
trial shows Mr. Bapela not only acting in the interests of the first
appellant and even protesting
when he needed to. For instance when
his client told the court he had two witnesses to call Bapela
protested at the suggestion
of securing the witnesses at one day’s
notice and eventually, he secured a two weeks adjournment.
[42]
Mr Shapiro furthermore argued that the trial court misdirected itself
by not correctly applying
the cautionary rule on the single witness
evidence being Mr Sipho Maleka, whose evidence led to the conviction
of the first appellant.
[43]
The further criticism levelled against the court
a
quo
was the evidence of Schultz that the first appellant told him that
Chipu was also involved in the robbery as he has to handover
the
truck. The trial Court correctly assessed this admission that it was
made freely and voluntarily. In
S
v Lange
[1]
,
in dealing with the admission of a statement made freely and
voluntarily it was held as follows:
“
No
grounds exist for properly excluding evidence, which serves …
the purpose of corroborating and implicating the …
appellant”.
[44]
Counsel for the respondent conceded that it is accepted that Schultz
should have, after the first
appellant’s initial admission,
warned the first appellant of his rights. Counsel for the first
appellant contended that the
first appellant’s rights were
infringed by the presiding officer during cross-examination when the
presiding officer said
that he arrested him after that the admission
statement was made. He contends that such interference is a material
misdirection.
[45]
Mr Shapiro furthermore criticises Mr Bapela and avers that he had not
properly consulted with
the first appellant. I do not agree with this
criticism against Mr Bapela. I am of the view that he did the best he
could to represent
the first appellant during the trial. It is not
proper for the appeal Court to involve itself with the strategy that
the State
or Defence ought to have adopted to prove or disprove the
case. The real issue in my view should be whether based on the
evidence
before it, the court
a quo
properly considered the
evidence before it comes to the conclusion to convict.
I
find no basis for the proposition that the trial was unfair. If,
however, I am incorrect for holding this view, the record shows
that
court
a quo
, did analyse the evidence and confirmed that there
were contradictions between the evidence of Maleka and Van Heerden
with regards
to the count on possession of a firearm.
[46]
Counsel for the appellant furthermore submitted that Chipu lied to
Schultz when he said he was
the driver. It is common cause that Chipu
was a truck driver’s assistant. It is not appropriate in my
view, to argue at appeal
that Schultz fabricated his evidence to
corroborate that the first appellant was the one who crashed the
vehicle. In fact, the
record shows that the first appellant denied
that he drove the crashed VW Golf. The only inference to be drawn is
that when the
first appellant purportedly told Schultz that the
hijacking of the truck was a "handover" by Chipu, he was
somewhat linked
to the crashed VW Golf.
[47]
Counsel for the first appellant furthermore submitted that the
learned Magistrate was biased
against the first appellant. He
referred to various pieces of the interjections by the court during
the trial which he submits
point towards bias. It should be recalled
that both appellants were represented by the advocates who are
admitted to practice law.
[48]
In dealing with the allegations of bias, Harms JA in
S
v Halgryn
[2]
said the following:
“
The
constitutional right to counsel must be real and not illusory and an
accused has, in principle, the right to proper, effective,
or
competent defence. Cf S v Majola 1982 (1) SA (A) 133 D-E. Whether a
defence was so incompetent that it made the trial unfair
is once
again a factual question that does not depend upon a degree of ex
post facto dissatisfaction of the litigant. Convicted
persons are
seldom satisfied with the performance of their defence counsel. The
assessment must be objective, usually, if not invariably,
without the
benefit of hindsight. Cf S v Louw 1990 (3) 116 (A) 125 D-E. The Court
must place itself in the shoes of the defence
counsel, bearing in
mind that the prime responsibility on conducting the case is that
counsel who has to make decisions, often
with little to reflect (CF R
v Matonis
1958 (2) SA 450
(A) 456 C) as explained by S v Louw supra.
The failure to take certain basic steps, such as failing to consult,
stands on a different
footing from failure to cross-examine
effectively or the decision to call or not to call a particular
witness. It is relatively
easy to determine whether the right to
Counsel was rendered nugatory in the former type of case but in the
latter instance, where
the counsel's discretion is involved, the
scope of the complaint is limited. As the US Supreme Court noted in
Strickland v Washington
466 US 688
at 689 " Judicial scrutiny of
counsel performance must be highlighted deferential. It is all too
tempting for a defendant
to second guess counsel’s assistance
after conviction or adverse sentence, and it is all too easy for a
court, examining
counsel’s defence after it has been
unsuccessful to conclude that a particular act or omission of counsel
was unreasonable”.
Not everyone is a Clarence Darrow or F. E.
Smith and not every trial has to generate into an OJ Simpson trial.”
[49]
The contention about the incompetence of Mr Bapela is the first
appellant's submission that he
failed to take the question of whether
the first appellant was warned of his rights prior to making the
admissions as stated by
Schultz. The record of the proceedings at the
Court
a quo
shows that the rights of the first appellant were
read to him after making the admission. In my respectful view, this
cannot be
the basis for holding that the trial at court
a quo
was unfair. Counsel for the first appellant had clearly consulted and
this is the reason he was able to cross-examine all the State
witnesses. Therefore there is no evidence to support the contention
that the trial was unfair based on the attack of how Bapela
conducted
the defence of the first appellant.
[50]
Regarding the alleged bias of the presiding officer at the trial
court, the Constitutional Court
held and commented on what the
approach of the Court hearing an appeal should be in
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[3]
as follows:
“
The
question is whether a reasonable, objective and informed person would
on the correct facts reasonably apprehend that the Judge
has not or
will not bring an impartial mind to bear on the adjudication of the
case that is a mind open to persuasion by the evidence
and
submissions of counsel. The reasonableness of the apprehension must
be assessed in light of the oath of office taken by the
Judges to
administer justice without fear or favour, and their ability to carry
out that oath by reason of their training and experience.
It must be
assumed that they can disabuse their minds of any irrelevant personal
beliefs or pre-dispositions. They must take into
account the fact
that they have a duty to sit in any case in which they are not
obliged to recuse themselves. At the same time,
it must never be
forgotten that an impartial Judge is a fundamental pre-requisite for
a fair trial and a judicial officer should
not hesitate to recuse
herself or himself if there are reasonable grounds on the part of a
litigant for apprehending that the judicial
officer, for whatever
reason, was not or will not be impartial.”
[51]
The first appellant has raised in detail what he believed to be signs
of lack of impartiality.
The role of a judicial officer is to ensure
that the parties’ cases are presented fully and fairly and the
truth is established.
[52]
In
S
v May
[4]
Lewis JA had the following to
say on the role of presiding officer in a trial:
“
Even
if the magistrate did play a more active role than is usual for a
judicial officer, in itself that is not unfair. Judicial
officers are
not umpires. Their role is to ensure that the parties' cases are
presented fully and fairly and that the truth is
established. They
are not required to be passive observers in a trial; they are
required to ensure fairness and justice, and if
that requires
intervention then it is fully justifiable. It is only when prejudice
is caused to an accused that intervention will
become an
irregularity."
[53]
In
S v Rall
the Court held that the following principles
should determine whether the judicial intervention goes too far.
(a)
The trial must be so conducted that the judicial officer’s
open-mindedness, his impartiality,
and his fairness are manifest to
all those who are concerned in the trial and its outcome, especially
the accused. The Judge should
consequently refrain from questioning
any witnesses or accused in a way that, because of its frequency,
length, timing, form, tone,
contents, or otherwise, conveys or is
likely to convey the opposite impression.
(b)
A Judge should refrain from indulging in questioning witnesses or
accused in such a way or to such an
extent that it may preclude him
from detachedly and objectively appreciating upon the issues being
fought out before him by the
litigants. As Lord Greene MR observed in
Yuill v Yuill
(1945) 1 All ER 183
(CA) at 189B, if he does
indulge in such questioning:
“
he,
so to speak, descends into the arena and is liable to have his vision
clouded by the dust of conflict. Unconsciously, he deprives
himself
of the advantage of calm and dispassionate observation.”
(c)
A judicial officer should refrain from questioning an accused or a
witness in a way that intimidates
or disconcerts or unduly influences
the equality or nature of his replies.
[54]
It is also trite that where the judicial officer breaches any of the
injunctions one must still
ask whether the irregularity is such as to
cause prejudice. I find no evidence to demonstrate the alleged
unfairness on the part
of the presiding officer in the court
a quo
that led to prejudice of the first appellant. The presiding officer
interjected both on the State and the defence witnesses in
order to
clarify issues. As a consequence, I hold the view that the presiding
officer was not biased against the first appellant.
[55]
The first appellant contends, with the benefit of hindsight
ex
post facto
that the application in terms of section 174 of the
CPA ought to have been granted. The legal principles governing this
application
have been restated many times.
[56]
It is trite law that the guiding principle has always been whether
after the closing of the State's
case there exists evidence on which
a reasonable man, acting reasonably would convict. If no such
evidence exists, then the application
must be granted. The Court has
discretion in considering the application and that discretion must be
exercised judicially.
[57]
In
R
v Mall and Others
[5]
Caney J held that:
“
it
would not be a judicial exercise of discretion to refuse to discharge
an accused person if the case against him depended sorely
upon the
evidence of an accomplice in the circumstances in which corroboration
was required, but that corroboration was lacking.”
In
the present appeal, the conviction did not depend on the evidence of
the first appellant or his accomplice but depended on the
evidence of
Maleka and Van Heerden instead.
[58]
It is also trite that the accused person’s right to remain
silent and not to incriminate
himself is guaranteed in the
Constitution. In
S
v Mathebula
[6]
Claasen J held as follows:
“…
must
ask himself how the Constitution had influenced the exercise of
discretion which section 174 affords a presiding officer the
discretion.”
If
at the end of the State’s case there is no evidence tendered on
which a reasonable man can convict, the Court cannot refuse
a section
174 application with the hope that the accused person would
incriminate himself if the trial proceeds.
[59]
There is no evidence on record from the court
a quo
that the
conviction of the first appellant was as a result of his testimony
after the application for discharge in terms of section
174 was
refused. I, therefore, hold the view that the refusal by the
presiding officer in court a quo to discharge the first appellant
is
irrelevant to this appeal.
[60]
The second appellant contends that the court
a quo
misdirected
itself by holding that the State proved beyond reasonable doubt that
he was involved in both robberies. The second
appellant was arrested
by Van Heerden who testified that he saw him throw a rifle into the
bushes as he was giving chase. Van Heerden
admitted that he lost
sight of the second appellant at one stage but that when he
re-emerged he had the rifle in his hand which
he threw down after
being ordered to stop. The witness conceded that there were building
in the area. He saw the second witness
jump the fence.
[61]
The second appellant contends that due to the buildings in the area
and the fact that Van Heerden
did lose sight of him, the trial court
misdirected itself by not seriously considering this part of the
evidence. I do not agree
with the submission made. The trial Court
considered this evidence and acknowledged the discrepancies between
Maleka’s evidence
that the rifle was in the bag and Van
Heerden’s evidence which said the rifle was thrown down by the
second appellant. The
learned Magistrate ascribed these discrepancies
to the volatility of the chase and the situation. The trial court
held that the
discrepancies were indicative that Maleka and Van
Heerden were not coached on a version to say at court. After
evaluating the totality
of the evidence, the court concluded that
there was enough circumstantial evidence proving the guilt of the
second appellant as
charged beyond a reasonable doubt.
[62]
In leading their evidence the accused person is not required to prove
his or her innocence. In
Schackell
v S
[7]
Brand AJA held as follows:
“
It
is a trite principle that in criminal proceedings… a court
does not have to be convinced that every detail of an accused
version
is true. If the accused's version is reasonable possibly true in
substance the Court must decide on the acceptance of that
version. Of
course, it is permissible to test the accused's version against the
inherent probabilities. But it cannot be rejected
merely because it
is improbable; it can only be rejected based on inherent
probabilities if it can be said to be so improbable
that it cannot
reasonably possibly be true.”
[63]
In regard to the convictions, the trial court considered the
circumstantial evidence after evaluation
thereof and concluded that
based on recent possession of the VW Golf car, it was satisfied that
both appellants were involved in
the two robberies.
[64]
Based on the record of the proceedings and the evidence the court a
quo considered, I find no
misdirection on the facts and the law. As a
consequence, there is no basis to interfere with the judgment of the
trial Court on
conviction and sentence.
ORDER:
[65]
Therefore the following order is made:
(a)
The appeal against the conviction and sentence is dismissed.
ML
SENYATSI
Judge
of the High Court
Gauteng
Local Division, Johannesburg
I
concur,
A
MOSAJEE
Acting
Judge of the High Court
Gauteng
Local Division, Johannesburg
Date
of appeal: 29 October 2020
Date
appeal judgment delivered: 05 March 2021
First
and Second Appellants’ Counsel: Mr. P. Shapiro
Instructed
by: S Shapiro Attorneys
Respondent's
Counsel: Adv. SH Ruben
Instructed
by: Director Public Prosecutions, Johannesburg
[1]
[1997]
ZASCA 74
at para 10
[2]
2002
(2) SACR 211
(SCA) at para 14
[3]
1999(4)
SA 147 CC at 177 B-E
[4]
[2005]
4 All SA 334
[5]
1960
(2)SA 340 (N) at 342
[6]
1997(1)
SACR 10 (W)
[7]
2001
(4) All SA 279
(SCA) at para 30