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[2013] ZASCA 165
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Zwane and Another v S (426/13) [2013] ZASCA 165 (27 November 2013)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 426/13
In the matter between Not Reportable
TSHEPO BONGANI ZWANE
.....................................................
FIRST
APPELLANT
AMOS NKOSINATHI ZWANE
...............................................
SECOND
APPELLANT
and
THE STATE
........................................................................................
RESPONDENT
Neutral citation:
Zwane and another v The
State
(426/13)
[2013] ZASCA 165
(27 November 2013)
Coram
: Mthiyane AP, Cachalia, Malan, Tshiqi and
Majiedt JJA
Heard: 14 NOVEMBER 2013
Delivered: 27 NOVEMBER 2013
Summary: Criminal law – robbery with
aggravating circumstances – adequacy of proof –
falsehoods not always indicative
of guilt – doctrine of recent
possession – requirements restated – evidence adduced by
the State not sufficient
to sustain convictions – appeal upheld
and convictions and sentences set aside
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
North Gauteng High Court,
Pretoria (Fabricius J et Cilliers AJ, sitting as court of appeal):
The appeal is upheld. The order of the court below is
set aside and substituted with the following:
‘
The appeal succeeds. The
appellants’ convictions and sentences are set aside’.
______________________________________________________________
JUDGMENT
______________________________________________________________
MAJIEDT JA ( Mthiyane, Cachalia, Malan, Tshiqi JA
concurring):
[1] The appellants, Mr Tshepo Bongani Zwane and Mr Amos
Nkosinathi Zwane, were convicted in the Pretoria Regional Court on 9
counts
of robbery with aggravating circumstances. The first appellant
was also convicted on a count of the contravention of s 37 of the
General Law Amendment Act 62 of 1955 (receiving stolen property), as
a competent verdict on the offence the appellants had originally
been
charged with, namely theft of a motor vehicle. They were sentenced to
15 years’ imprisonment on each of the robbery
counts, ordered
to run concurrently. In addition, the first appellant was sentenced
to three years’ imprisonment on the tenth
count of receiving
stolen property. An appeal to the North Gauteng High Court, Pretoria
(Fabricius J, Cilliers AJ concurring) was
unsuccessful, as was an
application for leave to appeal against the convictions and
sentences. This further appeal is with the
leave of this court.
[2] Part of the record has been reconstructed, since the
plea proceedings and the evidence of the first 3 State witnesses
could
not be transcribed. The reconstruction is based on the Regional
Magistrate’s notes of the proceedings. It is common cause
that
the reconstructed record represents a true reflection of the
proceedings.
[3] The nine robbery counts relate to an armed robbery
at Pick ‘n Pay at Centurion, perpetrated during the early
morning of
6 February 2006, in the course of which the supermarket
and several of its employees were robbed of cash and other valuables.
The
tenth count relates to the theft of a Volkswagen (VW) Golf motor
vehicle in which the two appellants had been travelling on the
following evening, some 40 hours after the robbery, when they were
arrested by the police. The first appellant was the driver of
the
vehicle and the second appellant was his passenger. I deal first with
the tenth count, since the State has conceded that the
conviction
cannot stand. The first appellant’s version was that he and the
second appellant had borrowed this vehicle from
a certain Mr Dan
Tshabalala, who had since passed away. The vehicle was stopped by the
police during the evening of 7 February
2006, since its registration
number and colour did not accord with the official records. Goods
were found in the vehicle’s
trunk, which turned out to have
been part of the loot of the armed robbery at Pick ‘n Pay the
previous day. The first appellant
testified that he had been unaware
of these facts. He also adduced the evidence of Ms Johanna Mathlaba,
the late Mr Tshabalala’s
widow. She confirmed that the
appellants had borrowed the car from her late husband during February
2006 and that she was present
when he handed the car’s keys to
the appellants. The State was constrained to concede the merits of
the conviction on count
10, because as counsel for the State
correctly pointed out before us, the trial court did not reject Mrs
Mathlaba’s evidence.
The first appellant’s version was
consequently wrongly rejected by the trial court as false beyond
reasonable doubt. The
conviction on count 10, receiving stolen
property and the sentence imposed, must therefore be set aside. I
turn to the convictions
on the nine counts of robbery with
aggravating circumstances.
[4] The State’s case was based on circumstantial
evidence. Several of the robbery victims testified. None of them were
able
to identify the appellants as the robbers. The appellants’
convictions were based solely on the fact that recently stolen
items
were found in the VW Golf on the next evening after the robbery. I
commence with a broad outline of the proved facts relating
to the
robbery before I deal with the evidence in respect of the goods found
in the vehicle and whether its probative value was
sufficient to
sustain the convictions.
[5] Two robbers entered Pick ‘n Pay at around
6h00, when the staff in the bakery section reported for duty. They
violently
overpowered the staff members, including two managers, and
tied them up. A number of their accomplices joined the robbers
shortly
thereafter. Money bags containing cash, cheques, Pick ‘n
Pay documents as well as personal items and cellphones belonging
to
some employees were then taken by force. Some of the robbers were
armed with guns. According to the evidence the robbery lasted
just
under an hour. The Regional Magistrate found that the appellants had
been found in possession of the property shortly after
the robbery
had been committed; that the first appellant had furnished a false
explanation for such possession and that the second
appellant had
associated himself with this falsity; that their explanations were
not reasonably possibly true and that the only
inference to be drawn
from the appellants’ possession of the recently stolen articles
was that they had participated in the
robbery.
[6] It is plain and indeed uncontested that the items
found in the trunk of the car were part of the spoils of the robbery.
Appellants’
counsel described them as ‘the discarded
remnants of the loot that does not have immediate value.’ This
discovery potentially
implicates the appellants, in particular the
first appellant as the driver of the vehicle, in the robbery. The
first appellant
provided an explanation in this regard in his oral
testimony, while the second appellant elected not to testify. I shall
revert
to this aspect shortly.
[7] Trenchant criticism on a wide range of issues was
directed by appellants’ counsel at the versions of Bosch and
Rothman.
Various contradictions between their versions were
highlighted and some of these were contended to be material. In
addition, argument
was advanced before us, for the first time it
seems, that whatever the appellants were alleged to have said to
Bosch and Rothman
was inadmissible since the appellants had not been
warned of their constitutional right to remain silent. In this regard
reliance
was placed on
S v Orrie and another
2005 (1) SACR 63
(C) at 75 I – 76 C. One or both of the police officials (there
is a discrepancy in their versions on this aspect) asked the
appellants whose car it was and the first appellant allegedly stated
that it belonged to him. When questioned by Bosch about the
presence
of the money bags in the trunk, the first appellant is alleged to
have explained that he was a taxi owner and that he
used the bags for
the taxi money. Both appellants are alleged to have explained that
they had found the goods in a trash can in
Elardus Park, a Pretoria
suburb. When asked to point out the trash can, the appellants were
unable to do so. It is common cause
that the appellants had not been
warned of their right to remain silent on this occasion. The first
appellant denied having furnished
these explanations and averred that
he had informed the police officials that he had borrowed the car
from Mr Tshabalala and that
he was unaware of the items found in the
trunk. The Regional Magistrate accepted the evidence of Bosch and
Rothman, whom he found
to be credible witnesses. He rejected the
first appellant’s version as false beyond reasonable doubt and
made an adverse
credibility finding against him.
[8] In
S v Orrie
, supra, Bozalek J extended the
constitutional pre-trial rights afforded arrested, detained and
accused persons in s 35 of the Constitution
to suspects. The learned
judge reasoned that the notions of fairness and justice, based on a
purposive approach, required the broadening
of the ambit of these
rights. This line of reasoning had been adopted in an earlier
decision,
S v Sebejan & others
1997 (1) SACR 626
(W),
albeit obiter. But in a number of subsequent cases the courts
declined to follow the
obiter dictum
in
Sebejan
and the
ratio decidendi
in
Orrie
(see, inter alia:
S v
Ndlovu
1997(12) BCLR 1785 (N);
S v Langa & others
1998
(1) SACR 21
(T) at 27b-c;
S v Ngwenya & others
1998 (2)
SACR 503
(W);
S v Mthetwa
2004 (1) SACR 449
(E);
S v Khan
2010 (2) SACR 476
(KZP). In
S v Lachman
2010 (2) SACR 52
(SCA)
this court expressly left open this particular question (at para 39).
As was the case in
Lachman,
I do not deem it necessary to
decide this issue.
[9] The wide ranging criticism of the evidence of Bosch
and Rothman is in my view not justified. The discrepancies which
emerge
in their respective versions are rather indicative of an
absence of collusion and preplanned fabrication. In any event the
trial
court, having been in the infinitely better position of
observing the witnesses itself, made credibility findings in favour
of
Bosch and Rothman and against the first appellant. The confines of
an appellate court’s powers to interfere in findings of
fact
are well established – see
R v Dhlumayo & another
1948
(2) SA 677
(A) at 705-706, followed in a long line of cases, most
recently in this court in
Fourie v First Rand Bank Ltd &
another
2013 (1) SA 204
(SCA) at para 14 and in
S v Kekana
2013 (1) SACR 101
(SCA) at para 13. The State has in my view not only
proved that the items were found in the course of the search but also
that
the appellants furnished false explanations in respect of the
ownership of the vehicle (the first appellant) and in respect of the
origin of the goods found (both appellants). These falsifications are
not, however, without more necessarily in and by themselves
conclusive of the guilt of the appellants. It is trite that the
evidence must be assessed as a whole and that these dishonest
explanations would be but one of the factors, albeit an important
one, to be considered in concluding whether the State has proved
its
case. Regard must also be had to the inherent probabilities, taking
into account all the evidence (see
S v Van der Meyden
1999 (2)
SA 79
(W) at 82D-E, cited with approval in
S v Van Aswegen
2001
(2) SACR 97
(SCA) at para 8).
[10] It is convenient to deal first with the second
appellant’s position. The only basis for this conviction is his
presence
in the motor vehicle, and further, the fact that, in the
Regional Magistrate’s words, he had ‘associated himself
with
the lie of [the first appellant] in confirming to the police
that the property had been picked up’ (ie found in a trash
can).
While not outrightly conceding that the conviction is
unsustainable on the evidence, counsel for the State did not argue
with any
vigour for the dismissal of the appeal. The evidence against
the second appellant is woefully inadequate to sustain a conviction
and his election not to testify was entirely justified given the
absence of any incriminating evidence against him. His appeal
must
accordingly be upheld.
[11] The inference that a person found to be in
possession of recently stolen property is the thief or one of the
thieves (or, in
this instance, one of the robbers) can only be drawn
as the only reasonable inference where the nature of the goods stolen
and
the time lapse between the theft (or robbery) and the discovery
of the goods in that person’s possession lend themselves to
such a finding (see
S v Parrow
1973 (1) SA 603
(A) at 604B-E;
S v Skweyiya
[1984] ZASCA 96
;
1984 (4) SA 712
(A) at 715 C-D;
S v Mavinini
2009 (1) SACR 523
(SCA) para 6). The crucial question would be
whether the items concerned are of the type which can easily and
quickly be disposed
of, in which event anything beyond a relatively
short time lapse cannot be said to be recently stolen (see
Skweyiya
at 715E). In my view the items found in the trunk of the car had
little or no value to the robbers and are of the type that can
be
disposed of quite easily. These items were found in the trunk the
very next evening after the robbery. It is in my view a sufficiently
short time lapse to justify invoking the doctrine of recently stolen
property. But that is only one side of the case. The other
side is
the defence evidence of the first appellant and Ms Mathlaba, set out
above.
[12] It is trite that, while the false evidence or false
denial of an accused person is of importance in relation to the
drawing
of conclusions and a finding of guilt, caution must be
exercised not to elevate it to a compelling inference that, because
an accused
person is a liar, he or she is in all probability guilty,
since false testimony or a false statement does not always attract
the
most adverse inference of guilt (see
S v Mtsweni
1985 (1)
SA 590
(A) at 593H – 594A). In
Skweyiya
the appellant
gave not one, but two false explanations for the presence of stolen
goods in the trunk of the motor vehicle he was
driving when he was
stopped by the police. This court held that a false explanation is a
relevant consideration, but is not conclusive
of guilt (at 716A-C).
In my view the false explanation proffered by the first appellant,
absent any other incriminating evidence,
is not adequate proof of his
complicity in the robbery. People lie for a myriad of reasons and any
attempt to ascertain the reason(s)
in the instant case is to venture
into the realm of conjecture and speculation. On the evidence adduced
by Ms Mathlaba which, as
stated, was not rejected by the trial court,
the appellants did not open any part of the VW Golf for inspection
(ie including the
trunk) before they drove off with it. This evidence
fortifies the conclusion that I have reached that there was
insufficient evidence
to convict the first appellant. It was argued
by counsel for the State that it was highly improbable that Mr
Tshabalala, assuming
he was involved in the robbery, would lend his
vehicle with all the incriminating stolen goods in the trunk to the
appellants a
day after the robbery. But it is in my view equally
improbable, if not more so, that the first appellant, if he had
participated
in the robbery and thus having been aware of the stolen
goods in the trunk, would brazenly drive around with the vehicle a
day
after the robbery and, when stopped by the police, admit that he
is the owner of the car.
[13] Counsel for the State contended further that the
fact that, on the evidence, large amounts of money had been paid by
the first
appellant into the bank account of one Mzwandile Sibanyoni
(the first appellant’s brother), namely R20 000.00 cash on
6 February 2006, R10 000 cash on 7 February 2006 and 18 000
cash on 14 March 2006, was wrongly ignored by the trial court
as
being indicative of the first appellant’s guilt. The contention
is devoid of merit. The first appellant explained that
this was money
paid out by Old Mutual on an insurance policy of his father, which
the first appellant had to distribute amongst
the various
beneficiaries. No attempt was made by the State to follow up this
information by eg obtaining the policies and related
information from
Old Mutual by subpoena
duces tecum
. As the trial court
correctly found, although there were several contradictions and
inconsistencies in the first applicant’s
version on this
aspect, it could not be rejected as false beyond reasonable doubt.
There was no onus on the first appellant to
prove these facts –
the State bore the onus and failed to procure evidence which may have
gainsaid this explanation if indeed
it was untrue. The appeal must
therefore be upheld.
[14] I make the following order:
The appeal is upheld. The order of the court below is
set aside and I substituted with the following:
‘
The appeal succeeds. The
appellants’ convictions and sentences are set aside’.
________________________
S A MAJIEDT
JUDGE OF APPEAL
APPEARANCES
For Appellant: H L ALBERTS
Instructed by: Pretoria Justice Centre, Pretoria
Legal Aid Board, Bloemfontein
For Respondent: ANNALIE COETZEE
Instructed by: Director of Public Prosecution, Pretoria
Director of Public Prosecution, Bloemfontein