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[2008] ZASCA 88
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S v Mana (201/08) [2008] ZASCA 88; [2009] 1 All SA 143 (SCA) (11 September 2008)
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REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case Number : 201 / 2008
No precedential significance
SITHEMBISA
MANA Appellant
and
THE
STATE Respondent
Neutral
citation:
Mana v The State
(201/2008)
[2008] ZASCA 88
(11 September 2008)
Coram
:
SCOTT, STREICHER and PONNAN JJA
Heard:
29 August 2008
Delivered:
11
September 2008
Summary:
Evidence
– circumstantial evidence – adequacy thereof.
___________________________________________________________________
ORDER
___________________________________________________________________
On
appeal from:
The High Court, Grahamstown (Pickering and Revelas
JJ sitting as a court of appeal)
1 The appeal is upheld.
2 The convictions and sentences are set aside.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PONNAN JA (SCOTT and STREICHER JJA concurring):
[1] The appellant faced three charges in the Port Elizabeth Regional
Court, namely two of robbery with aggravating circumstances
and one
of the unlawful possession of a firearm in contravention of the
Firearms Control Act 60 of 2000
. Despite his plea of not guilty, he
was convicted on all three charges and sentenced in respect of each
of the first two charges
to 15 years’ imprisonment, which was
ordered to run concurrently, and in respect of the third to three
years’ imprisonment.
His appeal to the Grahamstown High Court
against the convictions only, having failed, he successfully applied
for leave to appeal
to this court.
[2] The salient facts giving rise to the conviction, briefly stated
are: During the course of 1 March 2002, one of the clerks at
the
Algoa Park Post Office was approached by a member of the public who
sought information as to the cost of postage. A cardboard
box in his
possession was duly weighed and on being informed of the cost, he
left indicating that he did not have money but promised
to return
later. At about 15:00 he did indeed return with what appeared to be
the same box. After once again weighing the item,
the clerk turned to
find a firearm trained on her by the man.
[3] The clerk was instructed to unlock the staff door which allowed
the intruder and his accomplices – they having since
arrived on
the scene, access to the inner sanctum of the post office. Once
inside the office of the postmistress they dispossessed
her (the
postmistress) of cash in excess of R30 000. To facilitate that
robbery, which was the subject of the first charge, they
had to
overcome the resistance of a security guard who was on duty and
dispossessed him of his .38 special firearm. Depriving the
security
guard of possession of his firearm constituted the second charge of
robbery.
[4] When the robbers made good their escape from the post office
after the robbery, the box was left behind on the counter. The
evidence adduced showed it to have been fashioned out of a piece of
brown cardboard with the aid of white sticky tape. The box
was taken
by the police into their possession and secured as an exhibit. In due
course it was examined by a finger print expert.
On the inside of the
box he found an identifiable palm print, which could not at that
stage be linked to anyone. During 2006, the
appellant was arrested on
some unrelated charge and his palm and fingerprints were thereafter
circulated within the SAPS. It was
only then, some four years after
the robbery in question, that a positive link was established between
the appellant and the palm
print which had been lifted from the
inside of the box that had been abandoned in the post office during
the course of the robbery.
[5] In his evidence in chief the appellant testified:
‘Goed, maar u het mos nou
die getuienis gehoor van die ekspert, hy sê hy moes die boks
oopmaak omdat hy nie enige identifiseerbare
vingerafdrukke buitekant
op die boks kon kry nie. Het u enige verduideliking vir die Hof hoe u
palmafdruk binne-in die boks beland
het? --- Ek self het nie
ondervinding van sy soort werk nie, ek kan nie ’n
verduideliking gee daaromtrent nie. Die moontlikheid
bestaan .... ek
het al baie keer kartondose hanteer, skoene, televisiestelle,
klerasie. Wat van daardie kartondose geword het,
ek self weet mos
nie.
So as ek u nou reg verstaan sê
u nou dat dit moontlik is dat u hierdie betrokke boks, dat u dit
miskien dalk kon hanteer
het? --- Ja.’
[6] The evidence against the appellant, consisting solely as it did
of a palm print on the inside of the cardboard box, which must
be
accepted to have been that of the appellant, is entirely
circumstantial. Whist there is nothing wrong in principle with
circumstantial
evidence and it sometimes can be compelling, the
present is not such a case. Absent any other evidence, in my view,
the finger
print evidence is wholly insufficient upon which to found
a conviction. Can it be said that on the totality of the evidence,
the
only reasonable inference to be drawn is that the palm print was
left on the cardboard box by the last person to have handled it
immediately prior to the robbery? I think not. A piece of cardboard
such as the one used to fashion the box here, is by its very
nature a
mobile object that is capable of use and re-use in the hands of
diverse individuals. The evidence does not establish where
the box
originated from or even, for that matter, where the robbers may have
come from. If indeed the robbery was planned, as appears
to be the
case, then the robbers may well have conveyed the box with them to
the post office. In that event it is possible that
the box travelled
a considerable distance on that very day prior to its use in the
robbery. In those circumstances, that the appellant’s
palm
print may have come to find its way onto the piece of cardboard out
of which the box was fashioned, in perfectly innocent
circumstances,
can hardly be excluded as a reasonable possibility. It follows that
the well-known tests set forth in
R v Blom
1939 AD 188
have
not been satisfied. Plainly therefore, on a conspectus of all of the
evidence, the conclusion that the appellant was one of
the
participants in the robbery and that it is under those circumstances
that he came to leave his palm print on the inside of
the box, is
unsustainable. That being so, the convictions cannot stand.
[7] In the result:
1 The appeal is upheld.
2 The convictions and sentences are set aside.
_________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
COUNSEL
FOR APPELLANT:
P L
VAN DER MERWE
INSTRUCTED BY:
GRAHAMSTOWN
JUSTICE CENTRE, GRAHAMSTOWN
CORRESPONDENT:
BLOEMFONTEIN
JUSTICE CENTRE, BLOEMFONTEIN
COUNSEL
FOR RESPONDENT:
N
HENNING
INSTRUCTED BY:
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS, GRAHAMSTOWN
CORRESPONDENT:
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS, BLOEMFONTEIN