Nxumalo v S (450/08) [2009] ZASCA 113; [2010] 1 All SA 325 (SCA) (23 September 2009)

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[2009] ZASCA 113
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Nxumalo v S (450/08) [2009] ZASCA 113; [2010] 1 All SA 325 (SCA) (23 September 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH
AFRICA
JUDGMENT
Case number: 450/08
No precedential significance
In the matter between:
BENZANI NXUMALO APPELLANT
v
THE STATE RESPONDENT
Neutral citation:
Nxumalo
v The State
(450/2008)
[2009] ZASCA 113
(23 September 2009)
Coram:
Streicher,
Brand JJA and Griesel AJA
Heard: 15 September 2009
Delivered: 23 September 2009
Summary: Evidence – whether circumstantial evidence
was sufficient to justify conviction of the appellant. Test regarding
such
evidence applied to the facts.
ORDER
On appeal from:
The Free
State High Court (Circuit Court at Kroonstad) (Hancke J and
assessors).
Order:
1. The
appeal is partially upheld to the extent that the convictions and
sentences im­posed
in
respect of
counts
21 and 22 are set aside.
2. Save as afore­said,
the appeal is dis­missed.
JUDGMENT
Griesel
AJA (
Streicher, Brand
JJA concurring):
[1] The appellant, as accused no 14, appeared with 14
co-accused before Hancke J and two assessors, sitting in the
Kroonstad
circuit court. They were charged with a total of 54 counts,
including
robbery with
aggravating circumstances, kidnapping and contraventions of the
Pre­vention of Organised Crime Act 121 of 1998
(POCA).
[2] After a protracted trial, the appellant – together
with some of his co-accused – was convicted on a total of ten
counts,
namely four counts of robbery with aggravating circumstances
(counts 19, 21, 23 and 25); five of kidnapping (counts 20, 22, 24,
26
and 27) as well as contravention of s 9(1)(a) of POCA (count
53). He was thereupon sentenced to a total period of 77 years

imprisonment, which was ordered to be served concurrently in such a
way as to amount to an effective term of 25 years imprisonment.
Leave
to appeal against the convictions and sentences was refused by the
trial court. Subsequently, however, this court, on petition,
granted
leave to appeal against the convictions on counts 19–22. Regarding
sentence, the parties were directed to address the
question as to how
the setting aside of the conviction
in respect of
these counts (or some of them) should affect the
composite sentence imposed
in respect of
these
and the other counts
of
which
the appellant was convicted.
Factual
background
[3] The appellant and some of his co-accused were found
to have been members of a criminal syndicate specialising in the
hijacking
of heavy trucks and other motor vehicles and the export of
such vehicles, primarily to Mozambique. The indictment covered more
than twenty separate hi­jack­ing incidents over a period of
some five-and-a-half years, between 1999 and 2005. The
modus
operandi
utilised by members of the syndicate
involved not only the use of firearms to rob the victims of their
vehicles and personal possessions,
but also the extensive use of cell
phones to keep in touch with each other prior to, during and after
operations. Evi­dence
linking various cell phone numbers to the
individual members of the syndicate thus formed a vital link in the
evidential chain
in the case against the accused.
[4] The trial court found that the cell phone numbers
ending in 8640, 7346 and 8852 could positively be linked to the
appellant.
In his evidence at the trial, the appellant denied that he
had ever used cell phones with the numbers ending in either 7346 or
8852. The trial court, however, rejected his version as false and
furnished cogent
reasons
for its conclusion. It has not been contended on appeal that the
trial court erred or mis­directed itself in this regard.
I can
accordingly find no grounds for disturbing these factual findings.
Counts 19
& 20
[5] Turning now to the first of two separate incidents
in respect of
which leave to
appeal has been granted, the evidence adduced at the trial
established that on 16 July 2004 the complainant, Mr Ernst
Rasepedi
Moepi, was
en route
along the road between Reitz and Frankfort with his employer’s
8 ton Isuzu truck with registration number LKX 314 GP.
Shortly after 14h00 near Frankfort he was robbed at gunpoint of
his
truck, cell phone and personal possessions after his vehicle had been
forced off the road by the robbers. In the process, he
was also
kid­napped and was held captive until 18h00 that day. These
events form the subject matter of counts 19 and 20, in
respect of
which accused nos 1, 2, 3, 4, 5, 6, 10, 11 and the appellant were
convicted.
[6] There was no direct evidence linking the appellant
to the com­mission of these offences. According to the judgment,
the
trial court convicted the appellant on the basis of the following
circum­stantial evidence:
The appellant’s cell phone with the number ending in
7346 was proved to have been in the vicinity of Frankfort at 14h22
on the
day in question.
The same cell phone was in contact with accused no 11
at 16h25 that same afternoon from the Randvaal area.
[7] In granting leave to appeal to
this court,
the parties were directed to
deal specifically with the question whether there is any evidence
linking the applicant to the commission
of these offences other than
the circumstantial evidence referred to above. If there is such
evidence, the parties were requested
to state the nature of the
evidence and to deal with the question whether such evidence is
sufficient to sustain the convictions
on these counts.
[8] In response, counsel
for
both sides pointed out that, according to the cell phone records, the
same cell phone was not only used in the vicinity of Frankfort
at
14h22 on the day in question, but also at 14h26 on the same day.
Moreover, between these two calls, the appellant’s cell phone

records reflect two further calls from the ‘Leeukop’ area at
14h24 and 14h25 respectively. From the fact that four calls were
made
from the same cell phone within five minutes of each other it is safe
to assume that Leeukop is also in the vicinity of Frankfort.
[9]
Counsel
for the appellant further pointed out that, contrary to the finding
of the trial court, the cell phone records of the appellant
(with the
number ending in 7346) do not show that he was in contact with
accused no 11 at 16h25 on that day. Instead, it shows
contact at
16h29 from the Randvaal area between the cell phone of the appellant
and the cell phone (with a number ending in 1911)
of an unidentified
person, who was proved to have been involved in various of the
offences. In addition, the records show contact
between the appellant
and the same ‘guilty’ cell phone at 21h16 and 21h19 the night
before the commission of the offences,
namely 15 July 2004.
[10] The correct approach
to
circumstantial evidence has been stated on
many occasions by this court and does not require reiteration.
1
Considering the cumulative effect of the circumstantial evidence in
this case, the picture that emerges is as follows:
The cell phone with number ending in 7346, which has
been positively linked to the appellant, was used four times within
a short
space of time at or near the scene of the crimes shortly
after those crimes were committed.
The scene of the crimes, near Frankfort in the
north-eastern Free State, is some distance away from Gauteng, where
the appellant
lives. His route took him along the same route –
from Reitz to Frankfort – as the route followed by the victim of
these crimes.
In the absence of a reasonable explanation from the
appellant, it is difficult to conceive of an innocent expla­nation
for
his presence in that area at that time.
The appellant has been proved to have been in cell
phone contact with the ‘guilty’ cell phone with number ending in
1911 on
two occasions on the night before the crimes in question as
well as the afternoon after the crimes were committed.
The appellant falsely denied any involvement in the
commission of the offences and falsely denied any connection with
the cell
phone number ending in 7346. In the light of the
incriminating nature of the evidence relating to that cell phone,
the trial
court was justified, in my view, in drawing an adverse
inference from the appellant’s false denials.
2
[11] On the evidence as a whole, I am satisfied that the
trial court was entitled to infer that the appellant was indeed at or
near
the scene of the crime outside Frankfort at the relevant time. I
am satisfied, moreover, that the inference of guilt is the only

reasonable inference to be drawn from the evidence. It follows, in my
view, that the appeal
in respect of
counts
19 and 20 can­not succeed.
Counts 21
& 22
[12] In another incident, on 27 July 2004 at
approximately 9h30 and between Memel and Senekal, the complainant, Mr
Thomas Leoma,
was hijacked and robbed of his employer’s Nissan
diesel truck, registration number CNR 169 FS, as well as
certain personal
belongings. He was also kidnapped and was held
captive until approximately 13h00 the same day. These events form the
subject matter
of counts 21 and 22.
[13] The trial court found that the state had proved the
guilt of the appellant as well as accused numbers 1, 2, 6, 11 and 15
beyond
reasonable doubt. In its summary of the evidence, however, no
mention is made of any direct or circumstantial evidence linking the

appellant to the com­mission of these offences, save for evidence
that there was cell phone contact between the appellant and
the
‘guilty’ cell phone (with number ending in 1911) on the afternoon
before
the crimes were
com­mitted. In the light of this evidence this court, in granting
leave to appeal, directed the parties to
deal specifi­cally with
the question whether there is any evidence linking the applicant to
the robbery on the day in question
other than the evidence of the
cell phone contact mentioned above. If there is such evidence, the
parties were requested to state
the nature of the evidence and to
deal with the question whether such evidence is sufficient to sustain
the convictions on these
counts.
[14] Counsel for the state was unable to refer us to any
further evidence linking the appellant to the crimes in question,
save
for relying on the general pattern or
modus
operandi
of the syndicate disclosed by the
totality of the evidence. Counsel fairly conceded, however, that he
could not seriously resist
the appeal with regard to these two
counts. In my view, this concession was properly made – especially
in view of the further
evidence emerging from the appellant’s cell
phone records, showing that the appellant’s cell phone was used
more or less at
the time of the commission of the offences, at 8h58
on 27 July 2005, at Booysens in Gauteng, some considerable distance
removed
from the scene of these crimes.
[15] Where the state is unable to prove actual physical
presence at the scene of a crime – let alone participation in the
crime
by an accused – it can only succeed in obtaining a conviction
if it can prove a pre-existing conspiracy or common purpose with

which the accused had associated himself to commit the crime in
question. With regard to counts 21 and 22, the state has failed,
in
my view, to discharge that onus.
[16] In the circumstances, it appears that the trial
court erred in convicting the appellant of these offences. It follows
that
the appeal
in respect of
counts
21 and 22 must be upheld.
Sentence
[17] Counsel for the appellant and the state were agreed
that success on appeal
in respect of
only
one set of charges would have ‘little or no effect’ on the
composite sentence imposed by the trial court. I agree with
this
approach. After all, ‘the court must look at the totality of the
criminal behaviour and ask itself what is the appropriate
sentence
for all the offences’.
3
Applying that yardstick to the remaining offences of which the
applicant has been convicted, I can find no reason to interfere
with
the composite sentence of 25 years imprisonment imposed by the trial
court.
[18] The following order is issued:
1. The
appeal is partially upheld to the extent that the convictions and
sentences im­posed
in
respect of
counts
21 and 22 are set aside.
2. Save as afore­said,
the appeal is dis­missed.
b m griesel
Acting
Judge of Appeal
APPEARANCES:
FOR APPELLANT: R C Krause (attorney)
Instructed by
BDK Attorneys
(David H Botha, Du Plessis & Kruger)
Johannesburg
Symington & De Kok
Bloemfontein
FOR RESPONDENT: C F Steyn
Instructed by
The Director of Public Prosecutions
Bloemfontein
1
R v De Villiers
1944
AD 493
at 508–509;
S v Reddy & others
1996 (2)
SACR 1
(A) at 8
c–h
.
2
S v Rama
1966 (2) SA 395
(A) at 400G–H;
S v Steynberg
1983 (3) 140 (A) at 147A.
3
Thomas
Principles of Sentencing
2ed (1979) p 56, quoted
with approval in
Johaar v The State
(652/2008) [2008] 46
ZASCA (21/5/09) para 14.