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[2010] ZASCA 119
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Mapande v S (046/10) [2010] ZASCA 119 (29 September 2010)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 046/10
CEDRIC MAPANDE
....................................................................................................
Appellant
and
THE
STATE
.............................................................................................................
Respondent
______________________________________________________________
Neutral citation:
Mapande v
S
(046/10)
[2010] ZASCA 119
(29 September 2010)
CORAM:
Navsa, Heher and Bosielo JJA
HEARD:
10 September 2010
DELIVERED:
29 September 2010
SUMMARY: Appeal against conviction
on the basis that identification evidence insufficient and that
evidence of co-accused ought
not to have been accepted ─ held
that evidence sufficient to found conviction. Appeal against sentence
on the basis that
insufficient consideration given to personal
circumstances and that the court had erred in not concluding that
there were substantial
and compelling circumstances ─ held that
conclusion on imposition of minimum sentence correct.
______________________________________________________________
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Limpopo High
Court (Thohoyandou) (Hetisani J sitting as court of first instance).
The appeal against both conviction and
sentence is dismissed.
______________________________________________________________
JUDGMENT
______________________________________________________________
NAVSA JA (Heher and Bosielo JJA
concurring)
[1] This appeal, with the leave of
this court, against conviction and sentence is without any merit. The
appellant, Mr Cedric Mapande,
was convicted with three other accused
in the Thohoyandou High Court on one count of robbery with
aggravating circumstances and
was sentenced to 15 years’
imprisonment.
[2] It was the State’s case that
on 27 June 2000 the appellant, together with three others, had gone
to the house of Mrs Elelwani
Friedah Chabalala at River Plaas and had
forced her at gunpoint to part with approximately R20 000 in
cash, clothing, a blanket,
a camera, a cell phone and shoes.
According to the State, the appellant was not one of the two robbers
who had entered the home
─ he waited in the vehicle parked
outside.
[3] A co-accused, Mr Balaganani Thomas
Nematswerani, testified in support of the State’s case,
implicating the appellant.
According to Mr Nematshwerani, the
appellant was fully involved in the planning and execution of the
robbery. The appellant’s
role at the scene was to ensure that
the getaway vehicle was protected during the robbery. His evidence
was corroborated in material
respects by Mrs Chabalala and another
witness in support of the State’s case, namely, Mr Charles
Chabalala. The latter testified
that the appellant and another person
had made enquiries earlier on the day of the robbery about the house
at which the robbery
was committed. According to Mr Chabalala, the
appellant and his companion were travelling in a motor vehicle, the
registration
of which he had noted and which ultimately was supplied
to the police. It is common cause that that vehicle was used in the
commission
of the robbery. Mrs Chabalala’s evidence coincided
with Mr Nematswerani’s testimony of the manner in which
the
robbery was committed. Mr Chabalala had also identified the
appellant at an identification parade.
[4] The appellant chose not to
testify. His appeal was based on two grounds. First, that the
identification evidence was insufficient
to found a conviction. It
was submitted on his behalf that Mr Chabalala had testified that the
enquiries referred to above were
made at a place called Tshabani,
located approximately 11 kilometres away from the scene of the
robbery. Second, that the court
below had erred in uncritically
accepting the evidence of the appellant’s co-accused.
[5] The submissions referred to in the
preceding paragraph are fallacious. In the scheme of things the
geographical distance between
the place where the enquiries were made
and the location where the robbery took place is minimal and can
easily be traversed by
a motor vehicle in a short space of time. The
evidence of Mr Chabalala is but one part of the totality of the
evidence on which
the conviction was based. It fits in neatly with
the testimony of Mrs Chabalala and that of the appellant’s
co-accused,
Mr Nematswerani.
[6] The inconsistencies between a
written statement made by the co-accused and his evidence in court do
not militate against the
acceptability of his testimony in relation
to the count of robbery presently under consideration. It is true
that Mr Nematswerani
was untruthful when he testified that he only
participated in the robbery presently under consideration and in
other robberies
because he was an informer for the South African
Police Services. He was rightly disbelieved on that aspect of his
evidence. It
was a desperate attempt by him to avoid the consequences
of his unlawful activities. It does not follow that because he gave
false
evidence in this regard that the remainder of his relevant
testimony is also untrue. One must guard against the natural impulse
to use that lie to reject otherwise plausible and corroborated
testimony.
[7] In Schmidt Rademeyer
Schmidt
Bewysreg
4 ed (2000) p 106 the following appears:
‘
Hoewel
die hof uit ‘n leuen
kan
aflei
dat ‘n getuie ook elders valse getuienis gelewer het, is die
normale gevolg dat slegs die bewese onware getuienis uitgewis
word.
Die leuen verswak dus normaalweg nie die ander getuienis nie.’
See also
S v Oosthuizen
1982
(3) SA 571
(T) and the other authorities referred to by the learned
authors.
[8] Of course, a court must be
cautious in approaching the evidence of an accomplice and must in
determining the guilt of an accused
have regard to the totality of
evidence and be conscious of the burden of proof that rests on the
State.
[9] It was submitted on behalf of the
appellant that Mr Charles Chabalala did not identify the appellant as
a robber but only testified
that he was one of a party of two who,
earlier on the day of the robbery, had made enquiries concerning the
house at which the
robbery was later committed. That is true.
However, the following has to be pieced together. First, there is the
evidence of Mr Nematswerani
implicating the appellant. Before
us, no reason was suggested for Mr Nematswerani’s random
selection of the appellant
as a co-perpetrator. Second, Mrs
Chabalala’s account of the robbery was consonant with Mr
Nematswerani’s testimony
about how it occurred. Third, there is
the evidence of Mr Chabalala, that the appellant had been in the car
used in the robbery,
making enquiries earlier that day about the
house at which it was perpetrated ─ Mr Chabalala was
immediately suspicious to
the extent that he recorded the
registration number which was ultimately supplied to the police and
which was traced back to the
robbery. Importantly, the appellant
failed to testify and challenge any of the evidence set out above,
implicating him.
[10] If a witness
has given evidence directly implicating an accused the latter can
seldom afford to leave such testimony unanswered.
Although evidence
does not have to be accepted merely because it is uncontradicted, the
court is unlikely to reject credible evidence
which the accused him
or herself has chosen not to deny. In such instances the accused’s
failure to testify is almost bound
to strengthen the case of the
prosecution.
1
In
S
v Chabalala
2003
(1) SACR 134
(SCA) para 21 the following was stated:
‘
The
appellant was faced with direct and apparently credible evidence
which made him the prime mover in the offence. He was also
called on
to answer evidence of a similar nature relating to the parade. Both
attacks were those of a single witness and capable
of being
neutralised by an honest rebuttal. There can be no acceptable
explanation for him not rising to the challenge. If he was
innocent
appellant must have ascertained his own whereabouts and activities on
29 May and be able to vouch for his non-participation.
. . . To have
remained silent in the face of the evidence was damning. He thereby
left the
prima
facie
case
to speak for itself. One is bound to conclude that the totality of
the evidence taken in conjunction with his silence excluded
any
reasonable doubt about his guilt.’
See also
S
v Boesak
[2000] ZACC 25
;
2001
(1) SACR 1
(CC) para 24.
[11] In the present case Mr
Chabalala’s evidence about the enquiries made by the appellant
and his testimony linking the appellant
to the vehicle used in the
robbery called for an answer as did the testimony of Mr Nematswerani
implicating him. At his peril,
the appellant chose not to testify. In
these circumstances the court below was correct in convicting him.
[12] In respect of sentence it was
contended on behalf of the appellant that the court had not taken his
personal circumstances
into account and had erred in concluding that
there were no substantial and compelling circumstances justifying a
deviation from
the prescribed 15 year-term of imprisonment.
[13] The submissions in the preceding
paragraph are baseless. Whilst it is true that the court below
(Hetisani J), could have been
more expansive in describing the
respective robbers’ personal circumstances, it is clear that it
took into account the appellant’s
degree of participation in
the robbery, namely, that he waited outside whilst the robbery was
being perpetrated. The court below
took into account that the
appellant had received his share of the cash proceeds of the robbery
and that he had identified completely
with the planning and execution
of the robbery. There is nothing to indicate that there is anything
in the appellant’s personal
circumstances that was not noted
that would have had a bearing on the sentence. The court below spoke
in general terms about the
motivation for the minimum sentencing
regime and the frequency of crimes of violence. The court below
clearly took the view that
there were no substantial and compelling
circumstances justifying a departure from the prescribed minimum
sentence, a conclusion
with which I can find no fault.
[14] For all the reasons set out above
the following order is made:
The appeal against both conviction and
sentence is dismissed.
_________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: M E Mokgotho
Instructed
by
Justice
Centre, Polokwane
Justice
Centre, Bloemfontein
For
Respondent: R J Makhera
Instructed
by
Director
of Public Prosecutions, Polokwane
Director of Public Prosecutions,
Bloemfontein
1
D
T Zeffert, A P Paizes, A St Q Skeen
The
South African Law of Evidence (
2003) p
127.