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[2019] ZALMPPHC 29
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Mabotja v S (A49/2017) [2019] ZALMPPHC 29 (20 June 2019)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE
NUMBER: A49/2017
In
the matter between:
PETER
COLMEN MASINDI MABOTJA
APPELLANT
And
THE
STATE
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The
appellant was charged with four counts of housebreaking with intent
to steal and theft. The appellant appeared in the Regional
Court
Mankweng and pleaded not guilty to all the charges he was facing. On
the 2
nd
December 2014 he was found not guilty and discharged on count 1 and
2, and convicted on count 3 and 4. On 10
th
December 2014 he was sentenced to five years imprisonment on each
count, and the court did not order the sentences to run concurrently.
The effective term of imprisonment is therefore ten years. The appeal
is with the leave of this court on both conviction and sentence
on
count 3 only.
[2]
The appellant attacks the conviction on the basis that there was no
direct evidence linking him
to the offence and also that he was
neither linked by fingerprints or possession of any of the stolen
properties. It was contended
that the trial court failed to consider
that other inferences could be drawn, in particular, that another
person might have entered
and stole the complainant’s
properties in the absence of the appellant.
[3]
With regard to sentence the appellant’s notice of appeal is
silent on that. The appellant
is only addressing the issue of
sentence in his heads of arguments. The appeal will be disposed on
the basis that the appellant’s
appeal is based on conviction
only.
[4]
The State called two witnesses to testify in relation to this count
and that was the complainant
and constable Gibbs. However, the
evidence of Constable Gibbs is limited to arresting the appellant as
the other portions of his
evidence was rejected by the trial court.
[5]
The complainant testified that the appellant was known to her as he
used to come to her place
looking for a job. As she was already
having other people who were working for her, she would give the
appellant food and fruits
and thereafter he would leave.
[6]
On the 22
nd
March 2014 the appellant came to her house and
found that the yard was not looked after as it has been two weeks
since the gardener
was not coming to work due the fact that his
parent has passed away. The appellant told her that he wanted to
thank her by doing
gardening as she has been giving him food. She
told him that he can work but she will pay him for that day.
[7]
She was supposed to take her client to Mall of the North. Before she
left, she told him that she
will come back with refuse bags and money
to pay him. She gave him the tools to work. The appellant told her
that there was no
rake, and she told him to go to her friend who
lives three houses from her and borrow that rake.
[8]
Her client arrived and she left with her client after 12h00. Before
she left, she
told the appellant that she was going with the client
and will come back with refuse bags. She closed the windows of her
house
and also locked the doors. She had dogs which will give trouble
if you enter the yard alone.
[9]
When she came back after an hour, she found that the appellant has
left and the window frame
was broken. She then phoned the police. The
police took her statement and she went to Builders Warehouse to buy
the window frame.
On arrival at Builders Warehouse when she opened
her bag she found that her purse was missing. She did not know what
happened to
her purse, but when she was with the police she had it.
[10]
On Monday when she checked what could have been stolen, she found
that two computers belonging
to the boys, navigators, cell phones,
necklaces, shoes, cutlery and clothes were missing. Sometime towards
the end of March 2014
she was called by the police to come and
identify any of her stolen properties from the items recovered by the
police. She was
able to identify only the navigator. She suspected
that the appellant had used the rake to break the wooden window
frame.
[11]
The witness was cross examined and she stated because she left the
appellant at her house, and
when she came back he was not there, it
was him who stole from her. She further stated that the police had
taken fingerprints.
The appellant closed his case without testifying.
[12]
The issue on this appeal is whether the State proved beyond
reasonable doubt that the appellant
is guilty of the crimes with
which he was charged. The State case was solely based on
circumstantial evidence.
In S V Reddy & Others
1996 (2) SACR 1
(A) at 8C-D
the court said the following:
“
In assessing
circumstantial evidence one needs to be careful not to approach such
evidence upon a peace- meal basis and to subject
each individual
piece of evidence to a consideration whether it excludes the
reasonable possibility that the explanation given
by the 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 inferences 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.”
[13]
The trial court in convicting the appellant has stated that the
appellant was left alone at the
house of the complainant to work
after he was offered a job to which he was supposed to be paid. The
trial court went on to state
that the appellant has failed to give an
explanation why he left before he was paid by choosing not to testify
and it relied on
the case of
S V Boesak
2001 (1) SA 192
(CC).
[14]
The trial court has evaluated the evidence in a piecemeal fashion.
The trial court has failed
to take into consideration that when
appellant volunteered to do gardening work for the complainant, he
did that as a token of
appreciation to the complainant who was
assisting by giving him food. He did not except any payments, but it
was the complainant
who offered to pay him. If indeed the appellant
was doing that out of the good of his heart, there was nothing
forcing him to wait
for the complainant. After he had left anybody
could have come and broke into the house.
[15]
The appellant has closed his case without testifying. It is correct
that in
S v
Boesak
the Constitutional Court has warned
about the consequences of remaining silent.
In Malahlela v State
[2016] ZA SCA 181
(28 November 2016)
at paragraph 16 the court
said:
“…
Circumstantial
evidence provides a basis from which the fact in dispute can be
inferred. The salient question to be answered is
whether the
appellant was guilty of the crimes committed beyond reasonable doubt.
All circumstantial evidence depends ultimately
upon facts which are
proved by direct evidence. I agree that where a prima facie case
proved against an accused person in a case
built and resting upon
circumstantial evidence to which a reply from an accused would be
expected, the fact that the accused elects
not to reply may be a
factor which, together with other factors in the case, leads to an
inference of guilt. However, the weight
to be attached to the
accused’s silent depends on the facts of the particular case.
See S v Letsoko
1964 (4) SA 768
(A). It is settled law that there is
no onus on the accused to prove his innocence. If an accused person
remains silent, as in
this case, the question remains whether the
state proved the offences charged beyond reasonable doubt”.
[16]
The fact that the appellant was left alone at the complainant house
doing gardening and has left
without being paid does not satisfy the
two cardinal rules of logic as formulated in the Blom case. There are
still number of reasonable
inferences which could be drawn why the
appellant left. There is no evidence that he left without completing
his job. The complainant
has closed the windows of her house and
locked the doors of the house. If the complainant has finished what
he was supposed to
do, there was nothing preventing him from leaving
since the house was safely locked and there were also dogs which will
guard the
house. Since the appellant did not expect any payment from
the complainant that day, it cannot be said he was desperate to
receive
payment that day. He could have come back at other day and
would have being paid what was due to him.
[17]
It is clear that the appellant’s conviction was based on
suspicion. In
Malahlela’s
case
supra
, the court
held that no person may be convicted on the basis of a suspicion, no
matter how strong. In my view there is no factual
foundation that
exists upon which the appellant’s conviction could be sustained
on the basis of inferential reasoning.
[18]
In the result, I make the following order
(18.1) The appeal is
upheld
(18.2) The order of
the trial court is set aside and substituted with the following.
“
Accused is found
not guilty and discharged on count 3.”
M.F
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA,
POLOKWANE, LIMPOPO
DIVISION
I AGREE
M.G
PHATUDI J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA,
POLOKWANE
APPEARANCE:
COUNSEL FOR THE
APPELLANT :
Adv L.M Manzini
COUNSEL
FOR DEFENDANT
:
Adv J.J
Kotze
DATE OF HEARING
:
24 May 2019
DATE OF JUDGEMENT
:
20
th
June 2019