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[2018] ZAFSHC 107
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Pholo v S (A207/2016) [2018] ZAFSHC 107 (7 June 2018)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
No. : A207/2016
In
the matter between:-
RICHARD
LENYATSO PHOLO
Appellant
and
THE
STATE
Respondent
CORAM:
DAFFUE, J
et
MATHEBULA,
J
HEARD:
04 JUNE 2018
JUDGMENT
BY
J
P DAFFUE
DELIVERED:
07
JUNE 2018
I
INTRODUCTION
[1]
The appellant was convicted in the Regional Court, Virginia on a
count of theft and sentenced to 5 (five) years’ imprisonment,
wholly suspended on certain conditions.
[2]
He appealed to this court with leave of the court
a
quo
against
his conviction only.
II
THE PARTIES
[3]
The appellant is Mr R L Pholo, a major male person, who was in
temporary employment as a teller at the Virginia branch of Standard
Bank during 2012 when he allegedly stole R60 000.00 from the
drop safe under his control and custody. He was represented
by
an attorney, Mr Kruger, during the trial, but Mr T J Modise of the
Bloemfontein Justice Centre appeared on his behalf before
us, the
heads of argument having been drafted by Mr L Tshabalala.
[4]
Adv R Hoffman appeared before us on behalf of the Director of Public
Prosecutions.
III
GROUNDS OF APPEAL
[5]
Appellant’s grounds of appeal can be summarised as follows,
i.e.
that
the court
a
quo
erred in finding that (a) it was impossible for any person to open
the drop safe, also referred to as the inner safe; (b) appellant’s
version about the problems experienced with the combination lock did
not hold water; (c) there was no basis upon which any other
co-employee could have stolen money from the safe; (d) appellant
failed to report for work and failed to return the keys to Standard
Bank; (e) appellant stole the money, well-knowing that the bank’s
security system was flawed; (f) the State witnesses did
not
contradict each other on material issues; therefore warranting a
finding that the State has proven its case beyond reasonable
doubt
and (g) the circumstantial evidence was so strong that the only
reasonable inference to be drawn from the established facts
was that
appellant had stolen the money.
IV
EVALUATION OF THE
EVIDENCE
Approach
on appeal
[6]
The court a quo could have been more precise in the manner that it
came to its conclusions. It also incorrectly
referred to
civil judgments in respect of the test to be applied when
circumstantial evidence is evaluated. However,
eventually it
came to the correct conclusion. An appeal is a re-trial on the
record although the ambit thereof is limited
to the issues raised by
the appellant. There is no reason why this court may not
reconsider the complete record of the entire
proceedings in the court
a
quo
.
See
S
v Zondi
2003 (2) SACR 227
(W) at 242h.
[7]
When an appeal is lodged against a court
a
quo
’s
findings of fact, the appeal court should take into account that the
court
a
quo
was in a more favourable position than itself to form a judgment
because it was able to observe the witnesses during their questioning
and was absorbed in the atmosphere of the trial. See Schmidt
and Rademeyer,
Law
of Evidence
3
- 40.
[8]
The
appeal court will normally accept factual findings made by the court
a
quo,
unless there is some indication that a mistake was made. See
R
v Dhlumayo
1948 (2) SA 677
(A) at 696 and 705. The Court of Appeal
summarised this issue as follows in
S
v Hadebe and Others
1997
(2) SACR 641
(SCA) at 645e - f:
“
Before
considering these submissions it would be as well to recall yet again
that there are well-established principles governing
the hearing of
appeals against findings of fact. In short, in the absence of
demonstrable and material misdirection by the
trial Court, its
findings of fact are presumed to be correct and will only be
disregarded if the recorded evidence shows them to
be clearly wrong.”
Therefore,
the presumption is that the trial court’s conclusion on the
facts is correct. The appeal court will only reverse
it where it is
convinced that such conclusion is wrong. In such a case, if the
appeal court is merely left in doubt as to
the correctness of the
conclusion, it will uphold it. The Supreme Court of Appeal in
S
v Naidoo and Others
2003 (1) SACR 347
(SCA) at para [26] reiterated this principle as
follows:
“
In
the final analysis, a Court of appeal does not overturn a trial
Court’s findings of fact unless they are shown to be vitiated
by material misdirection or are shown by the record to be wrong.”
[9]
The SCA emphasised that it could be useful for the understanding of
the evidence as a whole to break it down into components,
but the
appeal court should, in assessing the court
a
quo
’s
findings of fact, be careful not to focus too intently on the
separate parts and in doing so losing sight of the fact that
the
whole body of evidence might shed valuable light on the evidential
value of its components. See also
S
v Hadebe and Others
1998 (1) SACR 422
(SCA) at 426a – h and
S
v Ramulifho
2013
(1) SACR 388
(SCA) at 392g - h.
[10]
I have referred to the court
a
quo’s
imperfect judgment. No judgment is perfect and the fact that
certain issues were not referred to does not necessarily mean
that
these were overlooked. This case dragged on for two years in
the regional court. It is accepted that factual errors
do
appear from time to time, that reasons provided by a court
a
quo
are unsatisfactory or that certain facts or improbabilities are
overlooked. The appeal court should be hesitant to search
for
reasons that are in conflict with or adverse to the court
a
quo
’s
conclusions. See
Dhlumayo
loc cit
at
para [12] on 706. However, in order to prevent a convicted
person’s right of appeal to be illusionary, the appeal
court
has a duty to investigate the court
a
quo
’s
factual findings in order to ascertain their correctness and if a
mistake has been made to the extent that the conviction
cannot be
upheld, it must interfere. See
S
v M
2006 (1) SACR 135
(SCA) para [40] at 152a - c. I am satisfied
that notwithstanding inconsistencies in the versions of the State
witnesses,
and the employees of Standard Bank in particular, the
court
a
quo
cannot
be faulted for accepting the version presented by the State.
Probabilities
[11]
The State has to prove its case against an accused beyond reasonable
doubt, but in evaluating the evidence, the trial court
is entitled to
consider the probabilities and improbabilities. This issue was
considered in S v Chabalala
2003 (1) SACR 134
(SCA) at para [15]
where Heher AJA (as he then was) held:
“
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.”
See
also:
S
v Trainor
2003
(1) SACR 35
(SCA) at 41b – c.
[12]
In my view the probabilities are such that the State’s version
by far outweighs appellant’s version. He clearly
decided
not to return to work and effectively absconded, keeping the keys
with him. This is contrary to the conduct of any
reasonable and
innocent employee. It is just not probable that any of
appellant’s former co-employees would use the
opportunity to
gain access to the safe and steal R60 000.00 in circumstances
that appellant absconded and took the keys with
him. His
version about the keys and the reasons for his absence from work is
so improbable that it could safely be rejected
as false. The
same applies to the alleged knowledge of his former colleagues
pertaining to the digits of the combination
lock. In any event,
the inner safe could not be opened without the keys in appellant’s
possession and therefore a locksmith
had to be instructed to drill
that safe open.
Rejection
of an accused’s version
[13]
To
secure a conviction the State has to prove all the elements of the
crime beyond reasonable doubt. The test in a criminal case
has been
restated in
S
v V
2000
(1) SACR 453
(SCA) para [3] at 455b - c. If there is a
reasonable possibility that the accused is not guilty, he should be
acquitted.
The accused should be convicted if the court finds not
only that his version is improbable, but also that it is false beyond
reasonable
doubt. It is not necessary for the court to believe an
accused person in order to acquit him.
[14]
An accused’s version cannot be rejected merely because it
appears to be improbable. It must be shown, in light
of the
totality of the facts, to be so untenable and/or improbable and/or
false that it cannot reasonably possibly be true.
See S v
Schackell
2001 (2) SACR 185
(SCA) at para [30] and
S
v V
supra
.
I have alluded to appellant’s version above. I have no
doubt that the court
a
quo
correctly
found that his version could not reasonably possibly be true.
It is inconsistent with the inherent probabilities.
Another
aspect that may be mentioned is that appellant later testified that
he found the keys between his mattress and the base
of the bed.
It remains a mystery how the keys found their way there from the
laptop case which was left behind in Bloemfontein.
However, that is
not the end of the matter as no direct evidence was produced in
respect of the actual removal and theft of the
money.
Circumstantial
evidence and test to be applied
[15]
The test has been authoritatively stated in
R
v Blom
1939 AD 188
at 202 – 203. Firstly, the inference sought
to be drawn must be consistent with all the proved facts. If it
is
not, the inference cannot be drawn. Secondly, the proved
facts should be such that it excludes every reasonable inference
from
them, save the one sought to be drawn. If they do not exclude
other reasonable inferences, then there must be doubt
whether the
inference sought to be drawn is correct. The two rules referred
to above are known as the cardinal rules of logic
to be applied when
no direct evidence of an offence is available. In
R
v De Villiers
1944 AD 493
at 508 – 9 the Court emphasised that the cumulative
effect of all circumstances must be taken together to establish
whether
the inference of guilt is the only inference that can
reasonably be drawn, or put differently, that the evidence as a whole
is
beyond reasonable doubt inconsistent with the accused’s
innocence. See also:
S
v Reddy
1996
(2) SACR 1
(A) where
Zulman
AJA (as he then was) aptly referred to the following quotation at 8i:
“
A
number of circumstances, each individually very slight, may so tally
with and confirm each other as to leave no room for doubt
of the fact
which they tend to establish…
..Not
to speak of greater numbers, even two articles of circumstantial
evidence, though each taken by itself weigh but as a feather,
join
them together, you will find them pressing on a delinquent with the
weight of a mill-stone…”
[16]
All the factors that are either common cause or were duly proven by
the State tend to establish one reasonable inference to
the exclusion
of all other inferences and that is that appellant stole the
R60 000.00. Logic dictates nothing else,
but such a
conclusion. These
facts
are
inter
alia
the
following: (a) appellant was the teller at cubicle 3 of the Standard
Bank, Virginia branch; (b) at the end of the working day
of 10
October 2012 he was supposed to have R82 456.77 in his safe as
is evident from Exhibit F3, a document generated from
information
provided by appellant; (c) he absconded and did not return for
work the next day or at all; (d) Ms Motshoeneng
tried to
contact him several times by SMS and telephone messages;
(eventually she obtained appellant’s home address
from
the employment agency and went there where she found appellant);
(e) he told Ms Motshoeneng that he was not staying
there and directed
her to his flat where the Standard Bank’s keys could be found;
(f) when they arrived at the flat, appellant
changed his version and
told her that the keys were in his laptop case which he had forgotten
in Bloemfontein, but he promised
to deliver the keys once his friend,
on his way from Bloemfontein to Rustenburg bring the keys to Welkom;
(g) appellant never turned
up at the Bank; (h) a locksmith was
instructed to open the inner safe as there were no extra keys to open
this, which he
did, whereafter the money was counted by Ms
Motshoeneng and double-checked by two other employees of the Bank, Ms
Botha and Ms
Ramsy; (j) they found that R60 000.00 was
missing from the particular safe; (k) a criminal case was
opened more
than a month after appellant had absconded and when he
was arrested he handed the keys to the detective, Captain Strydom.
Failure to
cross-examine
[17]
The Supreme Court of Appeal made the following quite clear in
S
v Boesak supra
at para [50], relying in para [51] on the well-known
Sarfu
judgment of the Constitutional Court:
“
The
cross-examiner must put his defence on each and every aspect which he
wishes to put in issue, explicitly and unambiguously,
to the witness
implicating his client. A criminal trial is not a game of
catch-as catch-can, nor should it be turned into
a forensic ambush.”
[18]
Mr Kruger on behalf of appellant in the court
a
quo
went
on a fishing expedition during cross-examinantion, but never put it
to Ms Motshoeneng that she in particular, or she in co-operation
with
Ms Christa du Plooy (later referred to by appellant in his evidence
as Strydom) or any other employee, had access to the particlar
keys
and combination code and that they were the people that might have
stolen the money. In fact, Mr Kruger never put it
to Ms
Motshoeneng that the two ladies had to help appellant every day with
the opening and closing of the outer safe as he did
not know how to
operate the combination lock although he remembered the digital
code. Out of the blue appellant testified
that the two ladies
had to help him to open the combination lock as he
“
did
not know how to operate”
it.
Mr Kruger, and appellant by necessary implication, failed to live up
to the standard required in
S
v Boesak supra
and
the duty to put his defence properly on each and every aspect which
he wished to place in issue to the witnesses implicating
his client.
A criminal trial should not be turned into a forensic ambush.
V
CONCLUSION
[19]
I am mindful of the fact that Ms Motshoeneng was uncertain of herself
in several respects during her cross-examination.
This case is
a typical example of what happens too frequently in our lower
courts. Presiding officers should take care that
postponements
are kept to the minimum and for the shortest possible time.
In
casu
Ms
Motshoeneng testified on 3 October 2013 when her evidence in chief
was led. The matter was then postponed a few times for
different reasons,
inter
alia
the double booking of the attorney and also when appellant could not
afford the services of his attorney anymore and needed to
apply for
legal aid. As a result Ms Motshoeneng’s cross-examination
proceeded thirteen months later in November 2014
whilst the theft
occurred in October 2012. The other State witnesses, and in
particular Ms Botha and Ms Ramsy, who were called
to corroborate
aspects of Ms Motshoeneng’s testimony, testified in October
2015 and thus three years after the incident.
Notwithstanding
this delay, I am satisfied that the minor inconsistencies and
contradictions are insufficient to find that
the court
a
quo
did
not properly evaluate the evidence. The factual findings of
that court cannot be critisised. The appeal has
no merits
and should be dismissed.
VI
ORDER
[20]
The following orders are issued:
1)
The
appeal against conviction is dismissed.
2)
The
conviction and sentence are confirmed.
_____________
J.
P. DAFFUE, J
I
concur
______________
M.A. MATHEBULA, J
On
behalf of appellant: Mr T J MODISE
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of the
respondent: Adv R HOFFMAN
Instructed
by:
Director Public
Prosecutions
BLOEMFONTEIN