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[2020] ZALMPPHC 39
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Hlatswayo v S (A49/2018) [2020] ZALMPPHC 39 (12 June 2020)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
(1)
REPORTABLE: NO
(2)
OF INTEREST TO
OTHER JUDGES: NO
(3)
REVISED:
YES / NO
CASE
NO: A49/2018
In the matter between:
HLATSWAYO, STANLEY
VUSI
APPELLANT
And
THE
STATE
RESPONDENT
J U D G M E N T
MUDAU, J:
[1]
The
appellant and his three co-accused appeared before the regional
court, Modimolle on 3 charges of robbery with aggravating
circumstances
read with the provisions of
s 51(2)
of the
Criminal Law Amendment Act 105 of 1997
. The appellant was convicted
on all charges. His co-accused were acquitted of all charges. A
sentence of 10 years’ imprisonment
was imposed on each of the
three charges coupled with an order for the sentences to run
concurrently pursuant to section 280 (2)
of the Criminal Procedure
Act, No. 51 of 1977 (CPA). The effective sentence was therefore 10
years’ imprisonment, the magistrate
having found that there
were substantial and compelling circumstances justifying a lesser
sentence in favour of the appellant. The
trial magistrate
refused the appellant leave to appeal again sentence. The appeal
against conviction is with leave of the magistrate.
The appeal turns
on the quality and adequacy of the circumstantial evidence upon which
the appellant was convicted by the trial
magistrate. After an
agreement with counsel, this appeal was disposed of on papers without
further oral submissions in open court,
pursuant to section 19 (a) of
the Superior Courts Act
[1]
.
[2]
The
events that gave rise to the appellant’s convictions and
sentence are largely common cause. Briefly, they are as follows.
At
approximately 9 PM on the evening of 8 February 2015, a group of six
men armed with firearms robbed the complainants in respect
of the
three charges at a tuck-shop in Rooiberg. Various items that included
cash from the till register; various cell phones,
cigarette cartons,
airtime vouchers and a camera were stolen totalling thousands of
rands in value. The victims were shop assistants
and customers. The
robbers were travelling in a silver Toyota Avanza with registration
number BY 25 ZP GP owned by the appellant.
After the robbery
incidents, the robbers fled the scene in the Avanza.
[3]
Constable
Makhubela, a member of the SAPS was on patrol duty that night in the
area. Upon receipt of the report regarding the robbery,
as well as
the description of the motor vehicle involved, he took position at a
T-junction on a road he knew, the robbers were
likely to take. Not
long thereafter, the Avanza drove by and he gave chase in his police
patrol bakkie. In the process, the robbers
stopped and abandoned the
Avanza. Approximately six men fled from the scene into a nearby farm
by jumping over the fence. As he
was alone, he did not follow the
robbers any further. Some of the stolen items including cartons of
cigarettes were found inside
the motor vehicle including other
incriminating objects such as live ammunition. The ownership of the
motor vehicle was traced
through its registered address in Pretoria,
albeit in someone else’s names.
[4]
Based
on the information provided, the police traced the appellant to an
address at Kameelrivier, Mpumalanga, where he lived with
his
grandparents. However, the appellant was arrested at his girlfriend’s
house on 22 February 2015 in Siyabuswa on information
provided.
Subsequent to the appellant’s arrest, his co-accused were also
arrested. All four of them were linked to the motor
vehicle that was
used by the fingerprint evidence. However, since the fingerprints
were lifted outside of the said motor vehicle,
all the co-accused
court were given the benefit of the doubt and as a result, acquitted.
[5]
Other
than the fingerprints evidence found outside the vehicle the evidence
relied upon in convicting the appellant
was
that of the arresting police officer, Constable, Ngobeni. The trial
magistrate found Ngobeni, the investigating officer regarding
the
case, as an honest witness and accepted his evidence. Ngobeni
testified to the effect that, he traced the appellant to his
girlfriend’s address that night. Upon arrival, the girlfriend’s
mother denied upon an enquiry that the appellant was
there. However,
the girlfriend’s mother granted him permission to search the
house. In the girlfriend’s bedroom underneath
the double bed,
he saw a pair of running shoes, protruding. The appellant was hiding
under the bed. He thereafter called the appellant
by his name and
told to get out, which he did. The appellant was then arrested which
led to the arrest of the co-accused.
[6]
Constable
Ledwaba was one of the police officers who responded to the
incident of robbery and went to the scene where the
motor vehicle
used in the robbery was abandoned about 17 km away in response
to Makhubela’s call. He testified that,
all the doors of the
motor vehicle were left wide open. The Avanza keys were missing from
the ignition.
[7]
The
following Monday, on 9 February 2015 following the incident,
investigations took them to the appellant’s parental home
in
Mpumalanga. The appellant was not there. It was in appellant’s
bedroom under the mattress that the car keys of the Avanza
involved
in the robbery incident were found. However, the keys could only turn
the engine on, but the car would not start.
[8]
During
cross-examination, Ledwaba disputed that the motor vehicle keys were
next to the TV stand. Ledwaba disputed a suggestion
that the motor
vehicle broke down when the appellant was on his way from Thabazimbi
where he left it, but could not find it the
next day. Ledwaba
reasoned that the preposition could not be true is the motor vehicle
was never reported as stolen at the Rooiberg
police station in the
area where it was found abandoned. Ledwaba also disputed that there
was a spare key inside the motor vehicle
as he and other officers had
checked it thoroughly, including the inside of the cubbyhole, before
it was towed away.
[9]
The
appellant testified in his defence primarily as follows. On 8
February 2015, he was on his way from Thabazimbi in Limpopo, to
Siyabuswa in Mpumalanga where he lived. Halfway through to Warmbath
(Bela-Bela) the Avanza broke down. His attempts to have it
towed away
failed. Instead, he hitchhiked home from about 7 PM, which was about
2 hours before the incident of crimes that night.
He forgot to take
the spare key together with house keys from inside the cubbyhole.
However, he took with him the usual keys he
used for the Avanza. The
rear gate or door of Avanza could not lock. He used the vehicle as a
taxi. On that occasion, he had taken
a group of persons who hired him
from Vaalbank to Thabazimbi. When he found it missing the next day,
he suspected that the sheriff
of the court must have attached it for
the reason that his instalments from the bank that financed him when
he bought the motor
vehicle were in arrears.
[10]
The
appellant confirmed however, that the Avanza’s keys were found
by the police in his bedroom but on his version, on top
of the TV
stand. Regarding the circumstances under which he was arrested. He
disputed that Ngobeni effected the arrest but another
unspecified
officer. He denied that he had anything to do with the robbery
incident. Neither did he know any of the co- accused
he was charged
with in the trial court.
[11]
During
cross-examination, he testified that he did not look around to
establish where he was after the motor vehicle broke down.
On his
version however, he was more than 70 km from Warmbath. As to what was
wrong with the motor vehicle, it was because of a
leaking radiator
that was patched by silicon after an accident some six months before.
He confirmed that the motor vehicle was
bought and registered in his
uncle’s names.
[12]
The
motor vehicle was not insured at the time of the alleged incident of
crime. The insurance had been cancelled three years before.
It was
put to him that the sheriff of court could not possibly have known
where to attach the motor vehicle since on his version,
it broke down
in an area where he too did not know. He confirmed that he heard
Ngobeni testified that he was the one who arrested
him. He could not
dispute that Ngobeni’s evidence was not challenged in that
regard.
[13]
It
remains to determine whether on a conspectus of the evidence as a
whole, whether the state managed to discharge the onus of proving
beyond a reasonable doubt, that the appellant was one of the robbers
who committed the offences.
In S v
Chabalala
[2]
the court held that the correct approach is ‘to weigh up all
the elements which point towards the guilt of the accused
against all
those which are indicative of his innocence, taking proper account of
inherent strengths and weaknesses, probabilities
and improbabilities
on both sides and, having done so, to decide whether the balance
weighs so heavily in favour of the state as
to exclude any reasonable
doubt about the accused’s guilt’.
[14]
The
appellant’s challenge to the evidence is in a piecemeal
fashion. The appellant takes issue that his grandparents who were
present when Ledwaba found the motor vehicle keys in his bedroom were
not called by the State to corroborate this evidence.
[15]
In
S
v Reddy & Others
[3]
,
the
Supreme Court of Appeal
warned
against this, where
in
it
stated as follows:
‘
In
assessing circumstantial evidence one needs to be careful not to
approach such evidence upon a piece-meal basis and to subject
each
individual piece of evidence to a consideration whether it excludes
the reasonable possibility that the explanation given
by an accused
is true. The evidence needs to be considered in its totality. It is
only then that one can apply the oft-quoted dictum
in R v
Blom
1939
AD 188
at
202-203, where reference is made to two cardinal rules of logic which
cannot be ignored. These are, firstly, that the inference
sought to
be drawn must be consistent with all the proved facts and, secondly,
the proved facts should be such “that they
exclude every
reasonable inference from them save the one sought to be drawn.’
[16]
It
is accordingly trite that the court should always consider the
cumulative effect of all the items of circumstantial evidence.
As
early as 1944 in Rex v De Villiers
[4]
,
it was pointed out that the court should not consider its concerns in
isolation and then give the accused the benefit of any reasonable
doubt as to the inference to be drawn from each single circumstance.
It
is the cumulative impression, which all the pieces of evidence made
collectively, that had to be considered to determine whether
the
accused’s guilt had been established beyond a reasonable
doubt
[5]
.
[17]
The
trial magistrate’s approach in the evaluation of the totality
of the evidence is above reproach. On the common cause evidence,
the
magistrate was justified in the rejection of the appellant’s
evidence. It is improbable that the appellant was
hired as the
trial court found to drive such a long distance that he alluded to,
without fear that he was exposing the engine of
the motor vehicle to
possible further damage. As the trial magistrate observed, the
appellant was not present when the keys were
found. Accordingly, he
was not in a position to dispute or challenge the state’s
version that the keys were found underneath
a mattress in his
bedroom. Again, the appellant’s attempt to hide from the
arresting officer discredited the probability
of his version as
reasonably possibly true. The commission of the offence within two
hours after the robbers abandoned the robbers,
is unfathomable.
[18]
The
magistrate found correctly, on the probabilities as highly
unlikely that, the motor vehicle would have been attached by
a
sheriff of court way out of his or ordinary jurisdiction, in somewhat
fortuitous circumstances. In the ordinary course, a sheriff
of court
would have recourse in case of a judgment in favour of the financial
institution that financed the sale of the vehicle
against the
contracting party that in this case is, the appellant’s uncle.
[19]
The
fact that the appellant did not inquire from the sheriff whether that
was indeed the position, coupled with the fact that he
did not report
the disappearance of the motor vehicle to the police, make his
version highly improbable that it cannot reasonably
be possibly true.
The sentiments expressed by the court in
S
v Ntsele
[6]
are
particularly pertinent. There the Court held that the onus rests upon
the State in a criminal case to prove the guilt
of the accused beyond
reasonable doubt ─ not beyond all shadow of doubt. There is no
justification to disturb the trial court’s
findings of fact and
credibility regarding this matter. It follows, accordingly, that the
appeal is without any merit and falls
to be dismissed.
[20]
In
the result I make the following order:
18.1 The
appeal against conviction is dismissed.
T P MUDAU
[Judge of the High Court,
Limpopo Division,
[POLOKWANE]
I agree
M V SEMENYA
[Judge of the High Court,
Limpopo Division,
[POLOKWANE]
Date of Hearing:
12 June 2020
Date of Judgment:
12 June 2020
APPEARANCES
For the Appellant:
HW Moldenhauer
Instructed by:
Moldenhauer Attorneys
For the Respondent:
Adv. C Chauke
Instructed by:
DPP –
Polokwane
[1]
10 of
2013
[2]
S v
Chabalala
2003 (1) SACR 134
(SCA) at para 15
[3]
S
v Reddy & Others
1996
(2) SACR 1
(A)
at 8C-D
[4]
Rex
v De Villiers
1944 AD 493
508-9
[5]
See
also
S
v Ressel
1968 (4) SA 224
(A).
[6]
S
v Ntsele
1998
(2) SACR 178
(SCA)