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[2023] ZAECMKHC 95
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Kaschula v S - Appeal (CA&R49/2021) [2023] ZAECMKHC 95 (7 September 2023)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MAKHANDA
REPORTABLE/NOT REPORTABLE
Case No: CA&R 49/2021
In
the matter between:
KEVIN
KASCHULA
Appellant
and
THE
STATE
Respondent
APPEAL JUDGMENT
ELLIS AJ:
INTRODUCTION
[1] The
appellant was charged with theft in that during the period 1994 to
2015 and at or near Nedbank,
Oxford Street, East London, in the
Regional Division of the Eastern Cape, the appellant unlawfully and
intentionally stole about
480 gold Kruger coins, to the value of
R7 200 000.00, the property of Mr E V Krull or in the
lawful possession of Nedbank,
Oxford Street, East London, and/or its
employees.
[2]
The appellant was convicted as charged[1] on 12 April 2019 and
sentenced to eight years’
imprisonment on 2 August 2019.
The appellant was released on parole on 30 June 2020.
[3] This
appeal lies against the appellant’s conviction, the necessary
leave having been granted
to him on application to this court, after
his application for leave to appeal was refused by the Regional
Court.
GROUNDS OF APPEAL
[4] The
grounds of appeal raised by the appellant in his amended notice of
appeal are, in summary,
that the magistrate misdirected himself in
convicting the appellant of having stolen “about” 480
Kruger coins; that
there were various material misdirections in the
analysis and consideration of the evidence; the magistrate failed to
apply the
rules of evidence which apply to the assessment of
circumstantial evidence; the magistrate failed to set out the proved
facts from
which it was inferred that the appellant stole the Kruger
coins in question; the magistrate erred by not finding that the
evidence
adduced by the State does not exclude the reasonable
possibility that someone other than the appellant stole the Kruger
coins;
and that the only reasonable inference to be drawn from the
proved facts was not that the appellant stole the coins, which the
claimant claims were stolen.
THE STATE’S EVIDENCE AT TRIAL
[5] The
State adduced the evidence of nine witnesses at the trial. None of
the witnesses gave evidence
directly incriminating the appellant in
the theft. On appeal, Mr Jaftha on behalf of the State,
conceded that the appellant
was convicted on a “strong
suspicion”.
[6] I
summarise the evidence having a bearing on the outcome of this appeal
below.
[7] The
complainant, Mr Elvin Victor Krull (“Krull Snr”) was 82
years of age at the time
of the trial. He testified that around
1994 he decided to invest in gold Kruger coins (“Kruger coins”)
and bought
about 300 odd Kruger coins. He never counted his
Kruger coins and the 300 odd coins were acquired over a period of
time.
He decided that there were too many coins to keep in his
office strongroom and decided to rent a safety deposit box in the
vault
at Nedbank, Oxford Street, East London (“the bank”).
He rented safety deposit box 9B from the bank on 30 March
1994. He
approached the bank manager at the time, Mr Moeller (“Moeller”),
who suggested that Nedbank can assist him
in the further purchase of
Kruger coins. Krull Snr instructed the bank to purchase
Kruger coins on his behalf and over
the course of approximately one
year Nedbank acquired 400 Kruger coins on his behalf. At the time,
the appellant was employed by
the bank in the forex department. Krull
Snr did not collect the coins every month from Moeller to place in
his safety deposit box
and he let the coins accumulate. He used
to go to the Nedbank vault to add to his collection of coins on
random occasions
and he owned a blackish/dark green steel first aid
box with handles on either side (“the first aid box”)
that he utilised
for storage of the Kruger coins within the safety
deposit box 9B. He visited box 9B at the bank five or six times, the
last time
being some twenty years ago. He did not keep stock of
the Kruger coins held in the safety deposit box and to his mind the
total number of Kruger coins in box 9B was over 700.
[8]
Krull Snr testified that the last time he recalled handling the first
aid box was in 1995/1996
when he went there with a Mr Allan Kringlan
and added six coins, which he had purchased from Mr Kringlan, in box
9B. The
next time that he opened box 9B was on 19 May 2015,
after his 80th birthday, when he wanted to show his children how many
Kruger
Rands he had accumulated over the years and where he kept
them. As Krull Snr had, at some point, lost his key for box 9B
he took a locksmith with him to assist with the opening thereof.
On 19 May 2015 Krull Snr and his son, Frank Felix Krull (“Krull
Jnr”) went to the vault at the bank with the locksmith,
together with two female employees of the bank. The locksmith opened
box 9B on his instructions and Krull Snr discovered his first aid box
was missing from inside the locker and had been replaced
with a
smaller, brown petty cash box (“the petty cash box”).
The petty cash box was filled with Kruger coins
to the top. He
instructed Krull Jnr to count the coins, which he did. They found 320
coins in the petty cash box. According
to Krull Snr there were
between 300 to 400 coins missing. There was also a handwritten
note, dated and signed by his late
wife in the petty cash box,
reflecting “current contents 320 Kruger Rands” dated 17
July 1995. He recalled his
wife writing the note inside the
vault. He cannot recall whether the coins were in the first aid box
or the petty cash box on 17
July 1995 but stated that the note must
have reflected the amount of coins that they had in that particular
box at the time.
After discovery of the missing coins, he
handed the matter over to his son, Krull Jnr, who contacted the
appellant enquiring about
the missing Kruger coins and various
letters were exchanged between Krull Jnr and the appellant. A
couple of days later,
the appellant advised Krull Jnr that from
previous emails he established that there is a second safety deposit
box, box number
26 in the appellant’s name, that was utilised
to hold coins on behalf of Krull Snr pending the handover. On
27 May
2015 the Krulls went back to the vault and safety deposit 26
was opened to reveal a further 80 Kruger coins in their original
packaging.
The appellant handed the 80 Kruger coins to Krull
Snr and said that this now accounts for all Krull Snr’s coins
purchased
by the bank. Krull Snr could not recall whether the
appellant ever informed him that he opened a second safety deposit
box
for purposes of holding coins pending the handover, in his name.
[9]
Jonathan Michael Howe (“Howe”) a locksmith, testified
that on 19 May 2015 he attended
the bank at the request of the Krulls
where he opened Krull Snr’s safety box 9B by drilling a hole in
it and picking the
lock. He noticed two pre-existing holes in
box 9B which had been plugged with steel bolts, and further noticed
other safety
deposit boxes in the vault that were similarly drilled
and plugged.
[10] Krull Jnr
testified that on 19 May 2015 they went to the bank with a locksmith
for purposes of opening safety
deposit box 9B. Box 9B contained the
petty cash box, filled to the brim with Kruger coins and a
handwritten note by his late mother,
stating “current contents
320 Kruger coins” dated 17 July 1995. On 22 May 2015 the
appellant emailed him and
confirmed the existence of safety deposit
box 26, in the appellant’s name, which the appellant alleges he
held pending the
handover of coins to Krull Snr. On 27 May
2015, safety deposit box 26 was opened and found to contain 80 Kruger
coins in
their original packaging, which was handed to Krull Snr by
the appellant.
[11] The State also
called Moeller, the branch manager of the bank in 1995, who testified
that Krull Snr rented
safety deposit box 9B from the bank and
instructed him to purchase Kruger coins on an ad hoc basis on his
behalf. Moeller
never had insight into the content of Krull
Snr’s box 9B and was not aware of excess coins other than the
coins purchased
by the bank. Moeller further testified that
there ought to have been a record of every time a client accesses his
safety
deposit box and could not explain why the only two access
files missing in respect of the safety deposit boxes are those of
Krull
Snr (in respect of box 9B) and the appellant (in respect of box
26). The safety deposit box rental contract is renewed
automatically,
and the holder debited annually. He
further testified that it would be highly irregular for the coins to
be deposited
into a staff member’s personal safety deposit
locker. He further denied that he ever gave an instruction that
the coins
be kept in the appellant’s name.
EVIDENCE BY DEFENCE
[12] The appellant
testified in his own defence and called no further witnesses.
The appellant testified
that he did not steal the 480 coins referred
to in the charge sheet. He was employed from 1994 by Nedbank
and in that same
year Nedbank started purchasing Kruger Rands on
behalf of Krull Snr. He was involved in the purchases of the
coins in his
capacity as supervisor in foreign exchange and he was
initially instructed by Moeller to purchase coins on an ad hoc basis
for
Krull Snr. The appellant recollected that on occasions
after he purchased coins on behalf of Krull Snr, he handed them over
to Krull Snr in the vault. He was not involved in all
handovers, but the handovers would have been channelled through his
department. The Kruger coins were purchased in batches of
twenties and forties, and he accounted to Krull Snr in writing
regarding such purchases. The total number of Kruger coins
purchased on behalf of Krull Snr was 400. When the bank started
buying the Kruger coins for Krull Snr, the bank utilised a petty cash
box to hold the coins in their undercounter safe in the appellant’s
department, pending handover of the coins to Krull Snr. The
appellant was not aware that Krull Snr was in possession of other
Kruger coins. He testified further that in all probability he would
have taken the petty cash box from the under-counter safe in
his
department to Moeller’s office, with another staff member, for
handover. This practice ceased and subsequent handing
overs were from
an unallocated box in the vault, which was safety deposit box 26.
Later, box number 26 was allocated to the
appellant at the instance
of the responsible official. Initially the appellant’s
account number was recorded on the
contract in respect of box 26 but
he requested the bank to change it to Krull Snr’s account
number, as the Kruger coins in
box 26 did not belong to him.
When the appellant signed the contract for box number 26 on 2 June
1995, the box was empty,
and Krull Snr accumulated a further 80 coins
after that. The appellant did not notice from his own account
that his account
was debited for annual fees in respect of box 26, as
it was a nominal annual amount. Krull Snr closed his accounts
with Nedbank
at some stage and at the appellant’s insistence
Krull Snr returned as a client of Nedbank in 2010, at which time the
appellant
was no longer working in the forex department.
[13] The appellant
testified that Krull Snr called him in 2015 and informed him about
the discovery of the missing
Kruger coins. The appellant then
made an enquiry as to a safety deposit box in his own name and it was
confirmed that safety
deposit box 26 was in fact in in his name.
He found the key to box 26 in his old briefcase, and he was unaware
of the contents
of box 26. Arrangements were made and box 26
was then opened in the presence of several people on 27 May 2015 and
found to
contain 80 Kruger coins in their original packaging, which
were then handed over to Krull Snr. He testified that he
probably
did say to Krull Snr that he now has all his coins because
the 320 in Krull Snr’s box 9B plus the 80 from box 26 equalled
the 400 Kruger coins which the bank had recorded to have purchased on
behalf of Krull Snr.
EVALUATION OF THE EVIDENCE BY THE
MAGISTRATE
[14] For all intents
and purposes Krull Snr is to be considered a single witness in
respect of the existence and
quantity of Kruger coins acquired prior
to instructing the bank to purchase Kruger coins on his behalf, and
prior to opening safety
deposit box 9B with the bank in March 1994.
In this regard the cautionary principle applies.
[15] The evidence of
the appellant was not without contradictions. A version was put to
Krull Snr that it was
Moeller who said a box should be opened. Once
that version was refuted by Moeller, the appellant’s story
changed. He
stated that it was not Moeller but the controller of safe
custody who gave the instruction. Although he was aware of the box in
his name when it was opened, later in his evidence, he stated that:
“
MR
BENCE : And what did you do regarding that – the safe-the box
that was in your name?
ACCUSED
: I then made an inquiry if there was a locker in that –
in there in my name and they came back to me to confirm
that yes
there was. I then searched and found the key in my old briefcase.”
[16] This evidence was contrary to the
appellant’s evidence that he knew about the existence of the
box in his name. Having
said that those contradictions do not
place a burden on the accused person to prove anything. It is the
duty of the State to prove
its case beyond reasonable doubt.
[17] The State adduced no direct
evidence which proves that the appellant stole the coins and the
State’s case against the
appellant rested entirely on
circumstantial evidence. The approach therefore which the court
a quo needed to adopt in assessing
circumstantial evidence was to be
as follows.
[18]
A conviction can be based on circumstantial evidence. Where the
evidence against an accused is purely
circumstantial, before a court
a convict, it must apply the two rules of logic referred to in
R
v Blom
[2]:
“
In reasoning
by inference there are two cardinal rules of logic which cannot be
ignored:
(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 doubt
whether the inference sought to
be drawn is correct.”
[19]
An inference of guilt can only be drawn from facts which have been
objectively established and due allowance
must be made for the
reasons why the accused may have been a mendacious witness or
dishonestly denied certain facts. In
S
v Mtsweni
[3] the court said:
“
In the
present case there is no direct evidence that links the accused with
any attack on the deceased. His guilt or innocence
must be
determined in light of the circumstantial evidence and the inferences
which are justified on the proved facts. Inference
must be
distinguished from speculation and must be based on properly proved
objective facts. The comments of Lord Wright
in
Caswell
v Powell Duffryn Associated Collieries Limited
were quoted with approval in
S v Essack and
Another
are apposite:
‘
Inference
must be carefully distinguished from conjecture or speculation.
There can be no inference unless there are objective
facts from which
to infer the other facts which it is sought to establish. In
some cases the other facts can be inferred
with as much practical
certainty as if they had been actually observed. In other cases
the inference not does not go beyond
reasonable probability.
But if there are not positive proved facts from which the inference
can be made, the method of inference
fails and what is left is mere
speculation or conjecture.’”
(Footnotes
omitted)
[20] Glaringly
absent in the judgment of the court a quo is how the circumstantial
evidence was assessed, and
which objective facts were found to be
proved to justify the inferences drawn. Also absent, is how the
court a quo considered
the proved facts to be such that every other
reasonable inference can be excluded.
APPEALS AGAINST CONVICTIONS:
APPLICABLE PRINCIPLES
[21]
The question on appeal regarding the appellant’s conviction is
ultimately whether the evidence in the
trial is sufficient to prove
the guilt of the appellant beyond a reasonable doubt; this being the
State’s burden of proof.
In this regard, Plasket J (as he
then was) in
S v T
[4]
held that:
“
The State is
required, when it tries a person for allegedly committing an offence,
to prove the guilt of the accused beyond a reasonable
doubt.
The high standard of proof – universally required in civilised
systems of criminal justice – is a core
component of the
fundamental right that every 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 a 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/she was,
indeed, the perpetrator of the crime in question. That is an
inevitable consequence of living
in a society in which the freedom
and the dignity of the individual are properly protected and are
respected. The inverse
– convictions based on suspicion
or speculation – is the hallmark of tyrannical systems of law.
South Africans
have a bitter experience of such a system and where it
leads to.”
[22]
In
S v
Zuma
[5]
the aforesaid principles were restated as follows:
“
The
presumption of innocence is infringed whenever the accused is liable
to be convicted, despite the existence of a reasonable
doubt.”
[23]
In summary,
S v Van der Meyden
[6]
emphasizes that while the onus of proof in a criminal case is
discharged by the State if the evidence establishes the guilt
of the
accused beyond reasonable doubt, the corollary is that an accused is
entitled to be acquitted if it is reasonably possible
that the
accused might be innocent.
[24]
The question, otherwise cast, is therefore whether, at the end of the
trial, the evidence presented at the
trial is, as a whole, sufficient
to ground the conviction of the appellant. As adopted and
affirmed by the Supreme Court
of Appeal in
S
v Van Aswegen
[7] the evidence in the trial
as a whole must be considered. The overall picture is therefore
of central importance.
It is also critical to remember that an
appeal court is not a trier of fact at first instance; that is the
function of the trial
court.
[25]
The fundamental principle on the evaluation of evidence on appeal is
that an appeal court will not be inclined to disturb the
findings by
the trial court on the evaluation of evidence. This is borne by the
fact that it is difficult to surpass the advantage
of seeing and
hearing witnesses. The appeal court will only interfere if there was
a clear misdirection, and the findings of the
trial court are
declared erroneous[8]. This was reiterated by the Supreme Court of
Appeal in
AM and Another v MEC Health,
Western Cape
[9], where the court stated the
following:
‘
Such
findings are only overturned if there is a clear misdirection or the
trial court’s findings are clearly erroneous. That
has
constantly been the approach of this court and the Constitutional
Court as reflected recently in the following passage from
ST
v CT
:
“
In
Makate
v Vodacom (Pty) Ltd
the Constitutional
Court, in reaffirming the trite principle outlined in
Dhlumayo
,
quoted the following dictum of Lord Wright in
Powell
& Wife v Streatham Nursing Home
:
Not to have seen the witnesses puts
appellate judges in a permanent position of disadvantage as against
the trial judges, and unless
it can be shown that he has failed to
use or he has palpably misused his advantage, the higher court ought
not to take the responsibility
of reversing conclusions so arrived
at, merely on the result of their own comparisons and criticisms of
the witnesses and of their
own view of the probabilities of the
case”.
DISCUSSION
[26] The question
ultimately to be answered in this appeal is whether the evidence
adduced at the trial as a whole
was sufficient to prove the guilt of
the appellant beyond a reasonable doubt or whether the conviction was
based on suspicion.
To draw the inference that the appellant stole
480 of Krull Snr’s Kruger coins from safety deposit box 26, it
must be consistent
with properly proved objective facts.
[27] The evidence by
Krull Snr was unsatisfactory in various respects, not least of which
was the uncertainty
in respect of the initial quantity of Kruger
coins; which holding box was in the vault when he attended the vault
with his wife
in July 1995 , namely, the first aid box or the
petty cash box; and why his wife would write a note stating the total
Kruger
coins to be 320 if this was not the quantity contained therein
on 17 July 1995. It remained unexplained why no records existed
of access to safety deposit box 9B and safety deposit box 26, with
not a hint of proved facts pointing to the appellant potentially
tampering therewith. None of the other eight State witnesses
were able to support Krull Snr’s version with direct evidence,
beyond reasonable doubt, that the appellant was the perpetrator of
the crime in question. The appellant’s exculpatory
version at least raises reasonable doubt. This is exacerbated
by the fact that the existence and quantity of Krull Snr’s
initial Kruger coins were not established and by convicting the
appellant of theft of about 480 coins will bring the total Kruger
coins then found to be owned by Krull Snr, in excess of 800, which
was never his version to begin with.
[28] The magistrate
did not apply the rules of evidence which apply to the assessment of
circumstantial evidence
with the result that there were no positive
proved facts from which the inference can be made that the appellant
was the perpetrator
of the crime. All that is left, is speculation or
conjecture, which the court in S v Mtsweni condemns. For reason of
the aforegoing,
the conviction by the magistrate cannot stand and the
appeal must succeed.
[29] As aforementioned this
appeal relates to the conviction only. It is trite that once a
conviction has been set aside the
sentence which resulted therefrom
cannot stand.
Accordingly, I make the following
Order:
ORDER
1.
The appeal against conviction is upheld.
2.
The order of the Regional Magistrate is set aside and is replaced
with the following order:
“
The accused
is found Not Guilty and discharged.”
L ELLIS
ACTING JUDGE OF THE HIGH COURT
NORMAN J:
I agree.
TV NORMAN
JUDGE OF THE HIGH COURT
Appearances:
For
the appellant:
Mr P
Daubermann
For
the respondent:
Adv
JW Jaftha
Director
of Public Prosecutions
Date
heard:
26
July 2023
Date
delivered:
07
September 2023
[1]
The magistrate made no specific finding with
regard to the number of gold coins which the appellant stole, hence
it is accepted
that the appellant was convicted as charged.
[2]
1939 AD 188
at 202 – 203.
[3]
[1984] ZASCA 150
;
[1985] 3 All SA 344
(A) at 345 – 346;
1985 (1) SA 590
A; 593 D
– 594 G.
[4]
2005 (2) SACR 318
(E) at para 37.
[5]
[1995] ZACC 1
;
1995 (1) SACR 568
(CC) at paras 25
and 33.
[6]
1999 (1) SACR 447
(W) at 448 F – G.
[7]
2001 (2) SACR 97
(SCA).
[8]
R v Dhlumayo
1948 (2) SA 677
(A)
[9]
(1258/2018)
[2020] ZASCA 89