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[2023] ZAECMKHC 80
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Hoyi and Others v S (20/22) [2023] ZAECMKHC 80 (30 June 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Appeal Case No: 20/22
In
the matter between
:
SIKHUMBUZO
HOYI
1
ST
APPELLANT
LELETHU
PLATANA
2
ND
APPELLANT
MFUSI
NTUSHELO
3
RD
APPELLANT
ZWELINZIMA
NTSHANGASE
(
erstwhile
)
ACCUSED 4/DECEASED)
BUYILE
JAMBELA
5
TH
APPELLANT
MPUMELELO
DLANGA
6
TH
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
CENGANI-MBAKAZA AJ:
Background
[1]
In any given household, it is common for family members to perform
their regular duties, go shopping
and attend funerals. The household
of Mr Vukile Mabusela’s family (the complainant) was not a
deviation from everyday existence.
He and his wife, Mrs Nosipho
Mabusela (the deceased), shared a home in Motherwell in Gqeberha.
In their home, they had a
combination of big and small consumer
appliances. The deceased had pieces of jewellery that she had stored
inside a bag in their
bedroom. Additionally, the mobile phones were
housed in the same space. On an unspecified date, the couple had gone
shopping and
purchased some apparel which they later stored inside
the wardrobe. As anticipated, the garment was to be worn when the
opportunity
arose.
[2]
On the evening of 11 March 2018, a gloomy cloud hung over the
couple’s home when intruders
budged inside their home. The
deceased, who was in the kitchen minding her own daily business after
a long day of a funeral service,
spotted a suspicious car that had
parked next to the residence. The occupants that were inside the car
were identified as male
persons. The complainant, who was
wheelchair-bound, had taken a rest inside the bedroom at that stage.
[3]
Within a space of a moment, the kitchen door was pounded, and someone
entered the house. The deceased
rushed into the bedroom, closed the
door and yelled at the complainant about the intruder’s
presence. The intruder kicked
the bedroom door until it collapsed
while the deceased was still clinging to it. Out of shock and terror,
the deceased jumped into
the bed. An African man speaking IsiXhosa
repeatedly warned her to keep quiet. ‘’
Where
is your husband’s belt
,’’
asked the intruder. The deceased explained that her husband was
unable to wear belts due to his physical impairment.
[4]
The burglar went straight to the wardrobe and collected the garment
that the couple had purchased
from Woolworths. He opened the
complainant’s suitcase, took out his jersey and wore it. He
further took a black bag and collected
shoes and some other clothing.
When the deceased was asked about her jewellery, she pointed to a bag
that contained rings, earrings,
traditional beads, a wallet
containing a sum of R3000, 00 notes and watches. The burglar
collected all those items, including the
purses that were on top of
the pedestal and inside the drawers. He further took a total of about
four mobile phones inside the
house.
[5]
It transpired that the burglar was not alone. The complainant heard a
noise of some items that
were being dragged into the dining room. A
few minutes later, a second man entered the bedroom and said nothing.
The one who was
with the couple earlier instructed them to cover
themselves with blankets. It then became quiet, and the couple
assumed that the
burglars had left the premises. After about 10 to 15
minutes, they uncovered themselves. The deceased stood up to reach
for some
help. Again, footsteps were coming inside the kitchen. ‘
Who
said you must uncover yourselves?’
asked one of the
burglars who was inside the bedroom earlier. The burglar covered the
couple with a blanket, and three gunshots
were fired. From there,
they disappeared, and loud footsteps of police officers were heard
rushing in. Police identified themselves
and approached the deceased,
who was lying helplessly on the bed. Police further assisted the
complainant by taking him to
the dining room while they were
conducting police duties inside the premises. They observed that both
the kitchen and the bedroom
doors were damaged. The deceased was shot
in the head. The complainant later discovered that his wife was no
more.
The charges
[6]
Following the said events, the Appellants stood trial in the Regional
Court, Port Elizabeth)
(the court a quo)
in respect of the
following charges:
Count
1:
Housebreaking with intent
to rob and robbery (read with the provisions of section 262 (1) and
section 260
of the
Criminal Procedure Act 51 of 1977
);
Count
2:
Robbery with aggravating
circumstances as intended in
section 1
of Act 51 of 1977; and further
read with
Section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
Count
3
:
Murder
read with
section 51(1)
of the
Criminal Law Amendment Act 105 of
1997
;
Count
4
Attempted murder;
Count
5
:
Possession of an unlicensed firearm in
contravention of
Section 3
of the
Firearms Control Act 60 of 2000
and
Count
6:
Contravention of
Section
90
, read with
sections 1
,
103
,
117
;
120
(1)(a) and
Section 151
of the
Firearms Control Act, 60 of 2000
and further read with
section 250
of
the
Criminal Procedure Act, 51 of 1977
.
[7]
In the specificity of each charge, the State alleged that the
Appellants were at all material times,
either before or during or
after the commission of the offences, acting in common purpose. The
court convicted and sentenced all
the Appellants based on the charges
proved by the available evidence.
[1]
[8]
Aggrieved by the conviction and sentence, the Appellants enjoyed
their automatic right of appeal
in respect of count 3
[2]
and appealed against both the conviction and sentence. In respect of
counts 1, 2, 5 and 6, the
court
a quo
granted them leave to appeal against conviction and sentence to this
court.
The evidence
[9]
When asked to describe the assailants, the complainant testified that
the first man who entered
his room was middle-aged, dark in
complexion, with big lips. He collected his items and wore his
jersey. He identified this man
as Appellant 1, with whom he had spent
around 20 minutes in the bedroom. The second man who came in and said
nothing was light
in complexion, had small eyes and was slender. He
had a haircut that had a line on the left side. He identified
this man
as Appellant no 3. When asked how he could identify the
assailants, the complainant testified that he spent a lot of time
with
Appellant 1 and was able to identify both as he observed their
faces and structures. The complainant was further asked to state
if
he could identify any of the other Appellants in the dock. He
informed the court that he knew Appellant 6 very well as his sister’s
grandson.
[10]
The following is the summary of combined evidence of police officers
who were patrolling the area on the
night of the incident. These are
Sergeants Ray Rossouw, Zolethu Ndavana, Fillis and Malila. These
police officers had been working
for Crime Prevention Unit for years.
On this day, they were performing their police duties in pairs and
were using different motor
vehicles. A group of about six men was
seen emerging from Mpheko Street running. There was a Maroon Toyota
Avanza motor vehicle
that had parked on the street. They jumped
inside the Toyota Avanza and fled. There was also a police van that
was at the
corner of Nyulutsi and Tyinara Street at that stage. The
Avanza collided with the police van. Rossouw, Ndarana and Malila
approached
the scene and spotted Appellant no 1 trying to hide at the
back of the Avanza. The other assailants fled to their heels, but
Malila
pursued and caught up with Appellant 2.
[11]
Rossouw testified that Appellant 1 spontaneously informed him about a
murder that had occurred at Mpheko
Street. He searched Appellant 1
and found two Nokia cell phones in his possession. As he was busy
with police duties, another phone
rang in Appellant 1’s person.
Ndarana searched him again and found another phone, a Motorola, and a
brown wallet. Appellant
1 had dressed in a multi-coloured jersey
which was later identified as that of the complainant.
[12] On
or about five days later, two police officers, namely Sergeants Lengs
and Murray, spotted two suspicious
males in Greenbush Area. The pair
entered a tavern, and they followed them. One of the suspects was in
possession of a firearm.
He put same down. The officers approached
them and searched a bag belonging to one of the suspects. He
confiscated a live round
3.8 and some rubber gloves. Because of the
curiosity of the patrons who seemed to be interrupting the process,
the officers decided
to apprehend both suspects and put them in a
police van. The officers testified that there was nothing at the back
of the bakkie
until they recovered a firearm under the seat of the
police van where the suspects were. On investigation, the two
officers were
convinced that the firearm belonged to the suspects.
The two suspects were identified as Appellant 3 and a certain ‘LK’
who was never charged. The firearm was kept as an exhibit and later
sent to the laboratory for forensic analysis.
The undisputed
scientific evidence
[13] Dr
Greg Ochabski, a Chief Medical Officer attached to the New Brighton
Mortuary, observed two bullet wounds
on the deceased’s head and
opined that the third was an exit wound. Two projectiles were also
extracted at the end of the
wound tracks. They were sealed in the
evidence bag and sent to Warrant Officer Channel Africa, a forensic
Science laboratory expert.
According to the report compiled, the
projectile that was recovered from the deceased’s head was
fired from the firearm that
was recovered during the arrest of
Appellant 3.
[14]
Captain Swaartbooi, a fingerprint expert, visited the complainant’s
home and observed a blue Mazda
motor vehicle that was stationary in
front of the kitchen. He lifted prints from the said vehicle, some
from the Maroon Avanza
that was confiscated by the police during
arrest and some from the TV and the VCR video machine that were in
the complainant’s
house. Appellants 1 and 2’s prints were
lifted from the Mazda. Appellant 3’s right thumbprint was
lifted from the left
door of the maroon Avanza. Appellant 5’s
prints were lifted from the VCR video machine that was found inside
the complainant’s
lounge. The complainant’s plasma
Television set that was found inside the Maroon Avanza consisted of
Appellant 6’s
fingerprints. Some were identifiable on the
bottom part of the TV screen.
[15]
The five Appellants testified in their defence and denied having
committed the offences in question. Their
evidence is summarised
thus: Appellant 1 testified about how he found himself in the car,
which is the subject of the criminal
activities in question. After he
had finished enjoying his drinks at the tavern, he boarded the said
Avanza, which was driven by
Appellant 2. On the way, they picked up
two more passengers. The passenger behind the driver pulled out a
firearm and cocked it.
He instructed the driver to take a U-turn
which he did. When reaching a certain house with a blue Mazda that
had parked next to
the kitchen door, he was forcefully asked to
collect some items and load them in the Avanza, which he did. A
police car emerged,
and they got inside the Avanza and fled.
Appellant 1 testified that amongst the passengers was Appellant 5,
who had been sleeping
at the back throughout this journey.
[16]
Appellant 2 testified that he was in the company of Appellant 5 when
they picked up Appellant 1. Appellant
1 asked to be dropped off at
Motherwell to collect some money. He offered to pay extra for that
special trip. On arrival at the
house at Motherwell (apparently the
deceased’s house), two men in their company got out of the car.
One was holding his cell
phone and smoking outside, and from there,
he heard that a dog was being beaten. One of the men asked Appellant
5 to wait for them
until they finished their mission. The one that
was smoking took him out of the car and instructed them to put the
appliances inside
the Avanza. A police vehicle emerged, and he was
forcefully asked to drive off. When the car sped off, it collided
with one of
the police vehicles. He ran out and later came back to
the police to explain what had happened. Appellant 2 testified that
he knows
Appellants 3 and 6 by sight. Appellant 2 denied Appellant
1’s version that they were pointed with a gun to drive to a
certain
house at Motherwell. Appellant 2 called his mother, Mrs
Mesiwe Platana as a defence witness. Her evidence did not take the
case
any further.
[17]
Appellant 3 could not explain how his fingerprints were found in the
Toyota Avanza, although he once boarded
the car on an unknown date.
He, however, confirmed that they were arrested at Greenbushes with
one Loyiso. He informed the court
that the only gun he had knowledge
of was the one that was picked up by the police under a beer crate in
the tavern. Appellant
3 testified that no firearm was found at the
back of the police van. He denied that he was in possession of a
firearm at any stage.
Appellant 5 is a taxi driver. On the day of the
incident, he was joined by Appellant 2. On the way to Motherwell,
Appellant 2 borrowed
his phone. It was at that moment that he found
himself sleeping. He later heard gunshots, jumped out of the car and
fled as he
feared for his life. Appellant 6 testified that two
detectives visited him and informed him that his fingerprints were
found in
the house that was robbed. He never denied the presence of
his fingerprints in the complainant’s TV set but explained that
he was once approached to assist in the mending of a television set
at Motherwell. He denied that the complainant and the deceased
were
his relatives.
Appeal against
conviction
[18]
Counsel for the Appellants submitted that the State has failed to
prove their guilt beyond reasonable doubt
[3]
and that the court below should have accepted that the version of the
Appellants was reasonably possibly true. It was further his
argument
that the cautionary rules applicable in the evidence of a single
witness
[4]
coupled with the caution that must be applied where identification is
an issue
[5]
were not properly applied by the
court
a quo
.
Counsel for the Appellants further contested the admission of
evidence of an erstwhile accused 4.
[19]
Counsel for the state opposed the appeal on the basis that the
evidence held by the State against the Appellants
was overwhelming
and that the version of the Appellants was full of contradictions and
improbabilities. She further conceded that
the evidence of the
erstwhile accused was incorrectly admitted by the court below as it
amounts to a confession that implicates
other Appellants.
[6]
In
Molimi
v State
[7]
,
a case that we were referred to by counsel for the state, the issues
up for debate were whether the statements made by accused
1 and 3
were confessions or admissions; whether the statements were
admissible against the applicant; whether the trial court and
the SCA
had complied with s 3(1) (c) of the Law of Evidence Amendment Act 45
of 1988 (the Act); and what the appropriate consequence
was. On
perusal of the statement of accused 1, the court found that it was
unequivocal admission of guilt, which is equivalent
to a plea of
guilt. It was evident from the statement that accused 1
implicated others. The Constitutional Court held that
the Applicant has a right to know a case against him, to
cross-examine authors of statements, and not to be expected to
challenge
hearsay evidence that is not only inadmissible against him
but disavowed under oath by those giving it if the improper admission
of inadmissible evidence resulted in fundamental prejudice to the
applicant.
[20]
Similarly, during his lifetime, the erstwhile
accused 4 [cited as Zwelinzima Ntshangase accused 4/deceased]
implicated all the Appellants
in the commission of the crimes in
question. According to the statement, there was a contract killing
that was planned way in advance
against the deceased’s wife.
The role that was to be played by each of the Appellants, including
his, is demonstrated in
the statement. This is the disquieting
feature in the evidence of the state. I find it insignificant to
dwell much on this issue
save to say that counsel for the Appellants
correctly contested the admission of the said statement as it amounts
to an inadmissible
confession, and the concessions made by the state
on appeal were in this regard appropriate.
[21]
The question is whether the remainder of evidence that was admitted
by the
court a
quo
supports the convictions and
sentences in relation to all the appellants.
Applicable law and
Evaluation of evidence
[22]
The principles which should guide an appellate court in an appeal
purely upon facts were set out in
Rex
v Dhlumayo and Another
[8]
as follows:
“
PER
SCHREINER, J.A.: Ordinarily the appellant in a criminal appeal has to
satisfy the appellate court that the verdict was wrong,
at least to
the extent that the trial court should have had a reasonable doubt as
to his guilt. at para 8 Where there has been
no misdirection on fact
by the trial Judge, the presumption is that his conclusion is
correct; the appellate court will only reverse
it where it is
convinced that it is wrong.”
[23]
To reach a finding that the case was proved beyond reasonable doubt,
the trial court evaluated the evidence
in its totality.
[9]
Despite the evidence of inadmissible confession that has been
rejected, there is a mosaic of evidence that proves beyond reasonable
doubt that the Appellants were identified, and the complainant’s
version was consistent with the proved facts. The person
who wore his
jersey during the attack was Appellant 1, and he was immediately
apprehended by the police wearing the same jersey.
The so-called
‘doctrine of recent possession
[10]
further strengthens the state’s case in that Appellants 1 and 2
were found in possession of stolen goods immediately, and
at the
time, they were chased and apprehended by the police. The
complainant’s cell phones, and a wallet were immediately
found
in Appellant 1’s possession. The Toyota Avanza, which was used
as a gate-away car, had some of the complainant’s
belongings.
These items were later identified by the complainant as his. The
person that was inside the bedroom and shot the deceased
was
Appellant 3. He was arrested in possession of a firearm that was
linked with the projectiles that were extracted from the deceased’s
head. I find that the trial court correctly applied the
cautionary rules.
[24]
Additionally, all the Appellants are implicated by objective evidence
from a fingerprint expert. I accept
that the fact that prints were
found at the scene of the crime and on objects carry a strong
probative weight in linking all the
Appellants to the commission of
crimes. Captain Swaartbooi’s credentials were never placed in
dispute. Gleaning from the
record, he testified in a coherent,
consistent, and credible manner in explaining the process of the
lifting of the prints in question
until the final analysis was
conducted.
[25]
Considering the aforesaid, one concludes that the trial court was
seized with credibility issues, and this
should be the focus of this
appeal. The following passage, which is extracted from the case of
Stellenbosch
Farmer’s Winery Group Ltd and Another v Martell et Cie and
Others,
[11]
finds
relevance in the present matter:
‘’
The
technique generally employed by courts in resolving factual disputes
where there are two irreconcilable versions before it may
be summarised as follows. To come to a conclusion on the
disputed issues the court must make findings on (a) the credibility
of the various factual witnesses, (b) their reliability, and (c) the
probabilities. As to (a), the court's finding on the credibility
of a
particular witness will depend on its impression of the veracity of
the witness. That in turn will depend on a variety of
subsidiary
factors such as (i) the witness' candour and demeanour in
witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with established fact
or
with his own extra curial statements or actions, (v) the probability
or improbability of particular aspects of his version,
and (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about same incident or events.
As to (b), a
witness' reliability will depend, apart from the factors mentioned
under (a) (ii), (iv) and (v), on (i) the opportunities
he had to
experience and observe the event in question and (ii) the quality,
integrity and independence of his recall thereof.
As to (c), this
necessitates an analysis and evaluation of the probability or
improbability of each party's version on each
of the disputed
issues. In the light of its assessment of (a), (b) and (c) the court
will then, as a final step, determine whether
the party burdened with
the onus of proof has succeeded in discharging it. The more
convincing the former, the less convincing
will be the latter. But
when all factors are equipoised, probabilities prevail’’.
[26]
It should be borne in mind that the trial court was better placed to
decide on credibility issues
[12]
and correctly found that the version of the State was reliable and
that of the Appellants was a mishmash of contradictions and
improbabilities. The evidence of the Appellants cannot be
reasonably possibly true while, at the same time, the evidence
of the
state is ‘completely acceptable and unshaken’.
[13]
The trial court correctly convicted all the Appellants, and the
appeal against conviction cannot stand.
Appeal against
sentence
[27]
The trial court ordered that the sentences in respect of counts 1, 2,
5 and 6 should run concurrently with
the sentence in count 3. Each
Appellant is facing an effective term of life imprisonment. The
sentences in counts 2 and 3 attract
a minimum sentence as prescribed
in terms of the
Criminal Law Amendment Act 105 of 1997
. The
Supreme Court of Appeal
in
S v Malgas
[14]
, at paragraph 7, remarked that courts are obliged to impose the
prescribed minimum sentences unless there are truly convincing
reasons for departing from them. The Appeal against the sentence is
premised on the ground that the
court
a quo
should have found the existence of substantial and compelling
circumstances in respect of counts 2 and 3 and that all the sentences
imposed were shockingly inappropriate.
[28]
It is well-established that sentencing is
pre-eminently the task of the trial court. A Court of appeal will
only interfere with its discretion if the trial court misdirected
itself or did not exercise its discretion judicially and properly
or
if the sentence is startlingly inappropriate. The principles
applicable in determining a fair, balanced, and appropriate sentence
have long been settled.
[15]
[29]
The Constitution guarantees an individual’s freedom from all
forms of violence from any source
[16]
, and Section 11 guarantees the right to life. This was a home
invasion carried out not by an individual but by repeat
offenders,
except for Appellant 6, who has no previous convictions
against him. As evident from the record, these violent crimes were
perpetrated
on the most vulnerable members of the society, the
elderly. Counsel for the state correctly pointed out that given
complainant’s
dependency on his wife, the deceased, for
survival due to his mobility issues, the complainant was essentially
helpless when
the deceased passed away. Following his wife’s
death, he was hospitalised on several occasions and had to undergo
psychological
therapy.
[30]
In the sentencing stage, the approach is that the personal
circumstances of the offenders are,
inter
alia
,
to be considered. Punishment may be regarded as a violation of an
individual’s right to dignity, privacy, and freedom of
movement. Our society values human rights: hence such transgression
calls out to be justified.
[17]
In applying
Zinn’s
principles,
the
court
a quo
considered all the personal circumstances of the offenders in
accordance with the blameworthiness of each offender.
[18]
[31] I
find that , the court a quo did not misdirect itself in finding
that substantial and compelling circumstances
were absent in respect
of counts 2 and 3, and the sentences imposed in respect of all counts
do not induce a sense of shock. There
are accordingly no grounds upon
which this court would interfere with the convictions and sentences
imposed in respect of all the
Appellants. Consequently, the
Appellants appeals in respect of convictions and sentences must fail.
Order
[32] I accordingly make
the following Order :
The appeals against
the convictions and sentences of all the appellants are dismissed.
N CENGANI-MBAKAZA
ACTING
- JUDGE OF THE HIGH COURT
I agree.
T. V NORMAN
JUDGE OF THE HIGH
COURT
Counsel
for the Appellants:
Adv
Sojada
Instructed
by:
Legal
Aid South Africa
69
High Street
MAKHANDA
Counsel
for the Respondent:
Adv
W Vos
Instructed
by:
Director
of Public Prosecutions
MAKHANDA
DATE OF HEARING:
07 JUNE 2023
DATE OF JUDGMENT:
30 JUNE 2023
[1]
Count
1- Housebreaking with intent to rob, Appellants 1, 3, 5 and 6 were
sentenced to undergo eight years imprisonment. Appellants
1 and 2 to
undergo fifteen years imprisonment. Count 2- Robbery with
aggravating circumstances- Appellants 1, 5 and 6 were sentenced
to
fifteen years imprisonment. Appellants 2 and 3 were sentenced to
undergo eighteen years imprisonment. Count 3- Murder, each
Appellant
was sentenced to undergo life imprisonment. Count 4- Attempted
murder- All Appellants were found not guilty and discharged.
Count
5-Possession of unlicensed firearm in contravention of Section
3 Act
60
of 2000, each Appellant was sentenced to undergo ten years
imprisonment. Count
6-
Possession of ammunition in contravention of section
90 Act 60
of
2000, each Appellant was sentenced to undergo two years
imprisonment. In terms of
Section 103(1)
of the
Firearms Control Act
60 of 2000
- each Appellant remained unfit to possess a firearm.
[2]
Section
309(1)(a)
of the
Criminal Procedure Act no 51 of 1977
, the Act
[3]
In
S v T
[3]
2005(2)
SACR 318 (ECD) at 329 b-e
the
court held that the state is required, when it tries a person for
allegedly committing an offence, to prove the guilt beyond
a
reasonable doubt. This high standard of proof universally required
in civil systems of criminal justice, it is a core component
of the
fundamental right that very person enjoys under the Constitution,
and under the common law prior to 1994, to a fair trial.
It is not
part of a charter for criminals, and neither is it a mere
technicality. When the court finds that the guilt of an accused
has
not been proved beyond reasonable doubt, that accused is entitled to
an acquittal, even if there may be suspicions that he
or she was
indeed the perpetrator of the criminal question.
[4]
Section
208 of Act 51 of 1977 entails that an accused may be convicted on
the evidence of a single and competent witness; see
also S v Sauls
1981(3) SA 172 (A) at 180 E-G
[5]
S
v Mthethwa 1972(3) SA 766 AD at 768 a-c
[6]
Section
219 provides that no confession made by any person shall be
admissible as evidence against another person.
[7]
2008 (2) SACR at page 76;
2008
(2) SACR 76 (CC)
[8]
1948
(2) SA 677 (A)
[9]
In
S v Van der Meyden 1991(1) SACR 447 (W) at 449 j-450 b
,
it
was stated that the correct standard is that if the evidence proves
the accused’s guilt beyond a reasonable doubt, he
must be
found guilty; conversely, if there is reasonable possibility of his
innocence he must be acquitted. The line of reasoning
which is
appropriate for the court to reach its conclusion must take into
account all the evidence depending on the specific
facts of the
case. ‘
Some
of the evidence might found to be false and some might found to be
unreliable and some of it might be found to be only reasonable
possible false or unreliable, but none of it may simply be ignored’.
[10]
Hunt,
South African Criminal Law and Procedure, Volume 11, third edition
(1996) 20 (by JRL Milton) page 636 describes the approach
as
follows:’……. the doctrine of recent possession,
is to the effect that if three requirements are satisfied,
the court
may infer that X stole the goods which were found in his possession.
As such the doctrine is simply a common -sense
observation on the
proof of facts by inference. The three questions which are not
easily answered are whether (i) the goods were
stolen; and (ii) how
recently the property was stolen; and(iii) whether the accused’s
explanation for his possession is
reasonably possible true’.
[11]
2003
(1) SA 11 (SCA);2003 (1) SA p11
[12]
R
V Dhlumayo
(supra)
the court further held,’
(3) The trial Judge has advantages - which the appellate court
cannot have - in seeing and hearing the witnesses and in being
steeped in the atmosphere of the trial. Not only has he had the
opportunity of observing their demeanour, but also their appearance
and whole personality. This should never be overlooked. (4)
Consequently, the appellate court is very reluctant to upset the
findings of the trial Judge.
[13]
See
S v Van Meyden (supra)
[14]
2001
(1) SACR 469
SCA
[15]
S
v Zinn 1969(2) AD
[16]
Section
12(1)(c) Act 108 of 1996 (The Constitution)
[17]
Section
36 of the Constitution
[18]
S
v Qamata 1997(1) SACR 497 E -483