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[2018] ZAECMHC 47
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Gijana and Another v S (CA58/2017) [2018] ZAECMHC 47 (14 August 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MTHATHA
CASE
NO:
CA58/2017
Date
heard
:
01 August 2018
Date
delivered
:
14 August 2018
In
the matter between:
MNCEDISI
CHRISTIAN MANCANE
GIJANA
First
Appellant
LUZUKO
SYDNEY ZAKES
MPIYAKHE
Second
Appellant
and
THE
STATE
Respondent
JUDGMENT
LOWE,
J
INTRODUCTION
[1]
In this matter the two Appellants (Accused 2 and 4 in the Court
a
quo
) together with three others were tried in the High Court on
charges of conspiracy to commit robbery, theft, robbery with
aggravating
circumstances, unlawful possession of firearms and
unlawful possession of ammunition.
[2]
All the accused pleaded not guilty to all charges, whereafter
extensive evidence was led.
[3]
The Court convicted First Appellant (Accused 2) on the charge of
robbery with aggravating circumstances, he being sentenced
to 15
years’ imprisonment, and Second Appellant (Accused 4) of
conspiracy to commit robbery, he being sentenced to
15 years’
imprisonment.
[4]
The appeal in this matter is in each instance against conviction
only.
[5]
The appeal is with the leave of the trial Judge
a quo
.
[6]
The background to this matter is that on 9 June 2008, a cash in
transit motor vehicle belonging to Fidelity Cash Management
Services,
driven by Accused 1 and guarded by Accused 3, was travelling to
Tabankulu when it was stopped by means of certain persons
in a stolen
City Golf and Nissan van. The City Golf motor vehicle blocked
the road forcing the cash in transit van to stop
on the roadside.
The occupants of the cash in transit van alighted from the vehicle
(under threat so it is alleged), the
vehicle being cut open using a
angle grinder and the sum of R1,100,000.00 contained in money
boxes in the vehicle, as well
as firearms, were removed therefrom and
transported away in the stolen City Golf. That this occurred is
not disputed, the
question rather being whether any of the accused at
the trial, particularly the Appellants were involved in the heist.
[7]
In essence it was alleged that Accused 1 was the driver of the cash
in transit van, whilst Accused 3 was the guard assisting
the driver.
It was alleged that Accused 1 informed Accused 3 that the plan
was to rob the vehicle suggesting to Accused 3
that he should offer
no resistance, the remaining accused being part of the heist robbery
team. When the cash vehicle was
stopped the robbers tied up
Accused 1 and 3, opened the rear of vehicle and removed the money and
firearms.
THE
PROPER APPROACH TO CRIMINAL APPEALS
[8]
In
S
v Leve
[1]
the following was said:
“
The fundamental
rule to be applied by a court of appeal is that, while the appellant
is entitled to a re-hearing because otherwise
the right of appeal
becomes illusory, a court of appeal is not at liberty to depart from
the trial court’s findings of fact
and credibility, unless they
are vitiated by irregularity or unless an examination of the record
of evidence reveals that those
findings are patently wrong. The
trial court’s findings of fact and credibility are presumed to
be correct because
the trial court, and not the court of appeal, has
had the advantage of seeing and hearing the witnesses and is in the
best position
to determine where the truth lies. See the
well-known case of
R v Dhlumayo and Another
1948 (2) SA 677
(A) at 705 and the passages which follow;
S v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645; and
S v Francis
1991 (1) SACR
198
(A) at 204C-F.”.
[9]
Put
otherwise, if there is no misdirection of fact by the trial Court the
point of departure is that the Court’s conclusion
on the facts
was correct. It will only reject the trial Court’s
assessments if it is convinced that that the assessments
are wrong
and even if in doubt the trial Court’s judgment must remain in
place. If of course the appeal Court is convinced
that the
trial Court’s conclusion on a factual question was wrong it
will reject that finding. It must be remembered
that it is not
only the finding of the trial Court which must be considered but also
particularly importantly the trial Court’s
reasons therefor. In
doing so, and in considering the appeal, the appeal Court must not
lose sight of the fact that the whole body
of evidence must be
considered and sheds valuable light on the evidential value of its
components. Similarly a Court of Appeal
will be slow to
interfere with the credibility findings of the trial Court. In
the result in the absence of factual error
or misdirection on the
part of the trial Judge that Judge’s findings are presumed to
be correct.
[2]
[10]
As will be seen in this matter the learned trial Judge, in a lengthy
judgment, analyzed and set out her findings of fact and
the reasons
therefore in some detail, and made important credibility findings
based on facts and reasoning in respect of all the
relevant
witnesses.
[11]
In summary, in this matter, the learned trial Judge cautiously
excluded any evidence that was in any way somewhat tainted in
one way
or another, exercising considerable effort in favour of the accused
and Appellants to make findings against them only on
what she
regarded as incontrovertible evidence. In doing so, and insofar
as the State evidence was concerned, she relied
upon the evidence of
a Section 204 witness being XOLISWA MTHINGWEVU (the S204 witness) and
the evidence led relevant to the cell
phone records that were
produced in evidence demonstrating not only calls made from
particular numbers to particular numbers but
also the location of the
relevant cell phone at the time where relevant. She then
continued to assess the evidence of the
Appellants (as also of course
the remaining accused and State witnesses) finding that the
Appellants were poor witnesses and unreliable.
In respect of
First Appellant she found that he was “
an unimpressive
witness and there were numerous contradictions in his testimony as
illustrated from the summary of his testimony”.
She
continued to find that his evidence contained demonstrable falsehoods
and contradictions, as she put it, and that “
His
untrustworthiness was aptly demonstrated during cross-examination of
him by State counsel and he is found to be an unreliable
witness,
fabricated his testimony and lied to the court as he went along”.
In respect of Second Appellant, she found that he was not an
impressive witness, as she put it, and that it was evident from
his
responses under cross-examination that there were discrepancies in
his testimony. She found that his version regarding
the alibi
defence was “
in the circumstances also improbable,
especially if his evidence is assessed as against that of the section
204 witness and having
regard to the discrepancy between the version
put to the witnesses in his testimony”.
It should
also be mentioned that Accused 1 was described as “
an
extremely pathetic witness”
his version was however not
rejected as not being reasonably possibly true. In respect of
Accused 3, his version was found
to be questionable and suspicious
but was not rejected as not being reasonably possibly true.
Accused 5 was not implicated
by the S204 witness.
[12]
The learned Judge was unimpressed by the evidence of the two
Appellants, whilst on the contrary she found the S204 witness
to be a
“
credible, reliable witness and her testimony can safely be
accepted and relied upon. I am satisfied that her testimony was
substantially satisfactory in every material respect and that her
version is essentially true beyond a reasonable doubt”.
The learned trial Judge concluded that this witness’s evidence
was of a sufficient calibre to warrant its acceptance
and that the
other witnesses evidence which differed from hers warranted being
rejected in the context of all the evidence.
[13]
In the circumstances, and bearing in mind that the trial Judge saw
the witnesses in person and could assess their demeanour,
the
starting point is, unless convinced to the contrary, that there was
no misdirection of fact by the trial Court, the trial Judge’s
conclusions being correct. In this regard, and correctly so in
my opinion, counsel for Appellants did not attempt to persuade
us
that either of Appellants’ assessment as witnesses by the trial
Judge was incorrect (without conceding that their evidence
should not
have been accepted), but rather concentrated on attacking the
evidence of the S204 witness, and attempting to distance
this from
the evidence of cell phone calls and positioning.
[14]
In summary, the submission relevant to First Appellant are that the
S204 witness ought not to be accepted absent corroboration
(as
properly understood) which was, so it was argued, absent and
accordingly that he should be acquitted, whilst in respect of
Second
Appellant the State evidence too ought not to be accepted on the same
basis, but further did not, even if accepted, amount
to evidence of
conspiracy to rob.
LEGAL
ISSUES
[15]
The
question is whether the State has proven the guilt of the accused
beyond a reasonable doubt. In order to determine whether
such
guilt has been so proven the evidence must be viewed holistically.
[3]
[16]
In
S
v Chabalala
[4]
it 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.”
[17]
We are here clearly dealing with the testimony of a single witness in
an instance where the version of the State and that of
the accused
are mutually destructive, and where credibility must play a
significant role.
[18]
It is
indeed so that the evidence of a single, competent and credible
witness may suffice to sustain a conviction.
[5]
[19]
In a case
such as this, involving as it does the testimony of a single witness,
the merits of the witness must be weighed against
factors which
militate against credibility.
[6]
[20]
Dealing
with a single witness’s testimony, the Court in
S
v Sauls and Others,
[7]
held:
“
The trial Judge
will weigh [her] evidence, will consider its merits and demerits and,
having done so, will decide whether it is
trustworthy and whether,
despite the fact that there are shortcomings or defects or
contradictions in the testimony, [the Judge]
is satisfied that the
truth has been told.”
[21]
In
S
v Mahlangu and Another
[8]
the appeal Court held that the trial Court was entitled to base
its findings on the evidence of a single witness as long
as this
evidence was substantially satisfactory in every material respect or
if there was corroboration therefore.
[9]
[22]
In
this matter, the S204 witness, was not only a single witness but also
an accomplice witness and accordingly there is a second
cautionary
rule which is applicable to her testimony.
[10]
The trial Judge took all this carefully into account.
[11]
The basis of treating an accomplice’s evidence with caution is
that the witness is a self-confessed criminal on the one hand
and on
the other, that various considerations may lead to such a witness
deciding to falsely implicate the accused. If however
an
accomplice’s evidence is satisfactory in all material respects
(or is corroborated sufficiently) nothing militates against
it being
taken into account in the consideration of whether the State has
proved its case against the accused beyond a reasonable
doubt.
The accomplice’s evidence need not be wholly consistent, or
even wholly truthful applying the ultimate test,
after applying the
cautionary rule, being whether the Court was satisfied beyond a
reasonable doubt that the story told was in
essence true.
[23]
The acceptance of the evidence of an accomplice
introduces a risk which is reduced by the presence of certain
features such as corroboration
of the accomplice implicating the
accused. At the end of the day, however, and once the trial
Judge appreciated the peculiar
danger inherent in the accomplice’s
evidence, but accepted same as a good witness and pointed to the
demerits of the Appellants
which approach on the record is beyond
question – there is little criticism for the approach and
conclusion adopted by the
learned trial Judge. Indeed the
learned trial Judge reviewed the authorities in respect of both
accomplice and single witness
evidence, correctly assessed same
together with all the remaining evidence, and applied this to the
evidence before her before
concluding that the accomplice evidence
was acceptable and true beyond reasonable doubt whereas the evidence
of the Appellants
was not reasonably possibly true.
[24]
Where, as
in this case, there are two mutually destructive versions the proper
approach to be followed is that stated in
S
v Singh
:
[12]
“…
it would
perhaps be wise to repeat once again how a court ought to approach a
criminal case on fact where there is a conflict of
fact between the
evidence of the State witness and that of an accused. It is
quite impermissible to approach such a case
thus: because the court
is satisfied as to the reliability and the credibility of the State
witnesses that, therefore, the defence
witnesses, including the
accused, must be rejected. The proper approach in a case such
as this is for the court to apply
its mind not only to the merits and
the demerits of the State and the defence witnesses but also the
probabilities of the case.
It is only after so applying its
mind that a court would be justified in reaching a conclusion as to
whether the guilt of an accused
has been established beyond all
reasonable doubt. The best indication that a court has applied
its mind in the proper manner
in the abovementioned example is to be
found in its reasons for judgment including its reasons for the
acceptance and the rejection
of the respective witnesses.”
[25]
In
S
v Janse van Rensburg
[13]
it was held:
“
Logic dictates
that, where there are two conflicting versions or two mutually
destructive stories, both cannot be true. Only
one can be
true. Consequently the other must be false. However, the
dictates of logic do not displace the standard
of proof required
either in a civil or criminal matter. In order to determine the
objective truth of the one version and
the falsity of the other, it
is important to consider not only the credibility of the witnesses,
but also the reliability of such
witnesses. Evidence that is
reliable should be weighed against the evidence that is found to be
false and in the process
measured against the probabilities. In
the final analysis the court must determine whether the State has
mustered the requisite
threshold – in this case proof beyond
reasonable doubt. (See:
S
v Saban en ’n Ander
1992
(1) SACR 199
(A) at 203
j
to 204
b
;
S v Van
der Meyden
1999 (1) SACR 447
(W)
(1999 (2) SA 79)
at 449
g
– 450
b
;
and
S
v Trainor
2003
(1) SACR 35
(SCA) ([2003]
1 All SA 435)
at para 9.)”
[14]
[26]
An accused,
on the other hand, bears no onus to establish his innocence.
The standard of proof set in a criminal trial is
a stringent one.
The Court, per
Goosen
J (concurred in by
Cossie
AJ), in
Buti v
S
[15]
said the following concerning the criminal standard of proof:
“
It serves to
ensure that persons who may be innocent of criminal conduct are not
readily convicted. It is a standard which
occasionally will
have the effect that a person who may indeed have committed an
offence is nevertheless acquitted. That
is the price we pay for
insisting that an accused’s guilt is established beyond a
reasonable doubt. There is no onus
upon an accused to establish
his innocence. Where there is a reasonable possibility that the
accused’s version is true,
then he or she is entitled to the
benefit of the doubt. An accused person need not of course be
believed. All that
is required is that his or her version must
be reasonably possibly true. If that is so then the prosecution
has not proven
beyond a reasonable doubt that the accused is
guilty.”
[16]
[27]
The
following remarks by Brand AJA in
S
v Shackell
[17]
are apposite:
“
It is a trite
principle ... a court does not have to be convinced that every detail
of an accused’s version is true.
If the accused’s
version is reasonably possibly true in substance, the court must
decide the matter on the acceptance of
that version. Of course,
it is permissible to test the accused’s version against the
inherent probabilities.
But it cannot be rejected merely
because it is improbable; it can only be rejected on the basis of
inherent probabilities if it
can be said to be so improbable that it
cannot reasonably possibly be true.”
[18]
.
THE
CENTRAL ISSUES
[28]
It follows from the above that the central issue relevant to this
appeal in respect of both Appellants is whether, having regard
to the
trial Judge’s factual and credibility findings, which have not
been sufficiently challenged on the record to sustain
being upset, is
whether the S204 witness, having regard to the cautionary rules
applicable as set out above and seen in the context
of the remaining
evidence, constituted insufficiently reliable evidence to sustain the
final conclusion reached of proof beyond
all reasonable doubt.
In respect of Second Appellant, there is the additional issue to
whether the evidence establishes the
crime of conspiracy to rob.
THE
SECTION 204 WITNESS
[29]
In assessing the evidence of the S204 witness, on the proper approach
thereto, and having regard to the learned trial Judge’s
conclusion in this regard in the context of all the evidence, it is
necessary to briefly summarize the ambit of her evidence.
[30]
In effect the S204 witness was the only credible witness whose
evidence remained directly implicating the Appellants in the
commission of Counts 1 and 3, as potentially corroborated by the
evidence of Warrant Officer JUNQWANA with regard to the cell phone
numbers of the Appellants and calls that were made from those cell
phones and from which vicinity the calls were made.
[31]
This witness testified in summary that she had known Accused 2,
(first Appellant) since 2006 they becoming friends thereafter.
On 24 May 2008 she met First Appellant in Kokstad this following a
previous meeting that they had had in February 2008. At
this
time she was working at Fidelity Security Services (FSS) in Kokstad.
She was what was referred to as a “
controller”
and
had been working there since 2005. She was related to Accused 1
having the same clan name. She became acquainted
with Accused 3
in 2005 he also working for FSS. She said that in respect of
Accused 5 she first saw him in Court. She
said that the events
leading up to the robbery commenced in 2006, First Appellant saying
to her that he needed money and that he
wanted to “
get to
CPS the place where money for payouts was kept”.
First Appellant was aware that she was responsible for keeping the
keys for CPS. It transpired that this was impossible
due to
alarms and cameras in the building and they gave up and left.
In 2008 First Appellant raised the issue again. He came
to her in
Kokstad and taking her away from work, they talked, he asking how
they could get “that money”. She
again raised the
alarms and cameras and suggested that they should take the money at
the “
sites”.
He asked if she knew people at
CPS/FSS who were in need of money and she said yes, many. He
requested her to organize
such people to participate in a robbery
relevant to the money. First Appellant, she said, wanted the
money that belonged
to CPS but did not know where the money was going
to be “
robbed”
whether on the way, as she put it,
or at the “
sites”.
She informed First
Appellant about Accused 1 who had approached her relevant to a
robbery.
[32]
She informed First Appellant that she had organized the necessary
people. She arranged to meet with, him travelling in
First
Appellant’s vehicle, he telling her that he was going to phone
his friend Zakes, who later turned out to be Second
Appellant.
Shortly thereafter on the same day First and Second Appellants, spoke
but not in her presence, she then boarding
Second Appellant’s
vehicle. She understood that he and Second Appellant were going
to talk and discuss, as she put
it, about the robbery. Whilst
in Second Appellant’s vehicle she called Accused 1 to meet them
at Cell C. They
all then ended up in Second Appellant’s
vehicle introduced themselves, First Appellant asking Accused 1
whether the money
was there, which he confirmed. In so doing he
referred to CPS there being a discussion of how much money they could
“
get”.
[33]
Later in the day First Appellant called her by phone telling her that
they had talked, referring to Accused 1 and Second Appellant.
Accused 1 told her that they had talked but that he did not trust
Second Appellant. She then, in Accused 1’s presence,
called first Appellant telling him of the mistrust whereafter and on
the same call First Appellant and Accused 1 talked over the
phone.
He (Accused 1) then informed her that they sorted out the
difficulty and were to continue with the plan.
[34]
She did not hear from First Appellant until 9 June 2014 he calling
asking her whether the vehicles had left already for the
pay points,
as she put it. He was referring to the vehicles that belonged
to CPS and FSS. She was not on duty that
day informing Second
Appellant accordingly. She says later at about 19h00 she was
phoned by First Appellant on the same day
informing her that they had
“
found the money”
but that it was “
little”.
She says she again received a phone call from him saying that she
should go out of her house and that she would see Second
Appellant’s
vehicle. She did so finding First Appellant in Second
Appellant’s motor vehicle he handing her R500.00.
He
asked her to call Accused 1 and tell him to meet him in Second
Appellant’s vehicle. She did so and they both went
to the
vehicle, she later going to her place as she put it. After
about a week to she received a further call from First
Appellant
asking when she would go to Mount Frere. On a later date she
went there meeting Second Appellant who gave her the
sum of money
which he said was R40,000.00. He dropped her at another place,
where she spent some of the money, there discovering
that in fact she
had been given R33,000.00.
[35]
She did not speak again to the accused and was arrested on 4 July.
After the arrest a sum of R20,000.00 was recovered
from her home.
[36]
In cross-examination the principal issue raised in argument was that
she had testified that she only made one police statement
which she
signed on 5 July 2008. In due course she admitted that the
investigating officer obtained a second statement after
the issue of
her becoming a State witness arose. This statement was taken on
20 July 2008. She said ultimately that
she had referred to only
one statement as she had said the same in both and regarded them as
one. Neither of these statements
were handed in and do not form
part of the record. It was argued before us, and put to the
witness, that in essence she had
been promised bail if she made a
further statement and became a State witness and that she falsely
implicated First and Second
Appellants for this purpose. This
she denied entirely. It was suggested that she should be
rejected as she only mentioned
Second Appellant in the second
statement this being inferred from the fact that he was only arrested
some days thereafter.
This she had denied saying she only found
out his name at Court – which was certainly after the
statement.
[37]
In respect of the cell phone call she had received from First
Appellant she gave his number as [...].
[38]
First Appellant while admitting that he knew her and suggesting that
she had been disappointed in a romantic relationship with
him and for
this reason amongst others falsely implicated him, denied her
evidence relevant to his being involved in any crime
at all.
She denied the relationship.
[39]
Second Appellant maintained that he was in Johannesburg at all times
relevant and had only met First Appellant in June 2008.
She was
of course unable to say whether Second Appellant was involved in the
actual robbery but, as has been set out above, he
was, she said,
present at the planning stages, and his car was utilized later as she
testified.
[40]
In respect of First Appellant, and the cell phone calls, the crux of
the matter is that First Appellant did not dispute the
number she
said she had been called from. He said however that this was a
second phone utilized at his business by others,
the question was not
what calls were made but the identity of the caller. The cell
phone evidence disclosed without doubt,
held the trial Judge, that:
First Appellant made calls to Accused 1 on 9 June 2008 at 06:38 and
in addition on 5, 6, 7 and twice
on 8 June 2008; First Appellant
called the S204 witness at 6h35, 11h05 and 18h07 on 9 June 2008;
First Appellant called Second
Appellant on 1 June 2008, 3 June 2008
and on 8 and 9 June 2008; Accused 1 called Second Appellant on 1 June
2008; Second Appellant
called First Appellant on 9 June 2008; Accused
1 called First Appellant on 6 June 2008 from his work cell phone.
[41]
The above evidence is highly significant and cannot be seriously
contested and, having regard to times, dates and places is
considerably supportive of the S204 witness’s evidence.
[42]
On a proper analysis of the evidence, and what was put to the State
witnesses on behalf of both First and Second Appellants,
it was
simply not possible for their counsel on appeal to seriously
challenge that these calls were made and received as deposed
to and
by the Appellants as referred to in the evidence of the S204
witness. As found by the learned trial Judge, these calls
as
summarized above, and in respect of First Appellant made in the
vicinity of the robbery of the day in question, which is devastating
support for the evidence given by the S204 witness and must be seen
to be strongly corroborative of her version.
[43]
Balanced
against the learned trial Judge’s findings concerning the
extremely unreliable evidence of the two Appellants, there
can be no
doubt that the trial Court was completely correct in concluding that
the evidence of the S204 witness fell to be accepted
as being not
only credible, but reliable and substantially satisfactory in every
material respect, as also corroborated in important
respects relevant
due to the cell phone calls and records. Contrary to the
submission by Appellants’ counsel, the decision
in
S
v Molimi
[19]
is not of assistance to the Appellants as there exists in the present
instance evidence that “
directly
implicate”
[20]
Appellants.
[44]
The Judge
a quo
recognized that there were some discrepancies
in her testimony relevant to when she actually made the statements to
the police,
but correctly in my view, however, finding that
ultimately her explanation in this regard fell to be accepted and
that this
was not such as to render her evidence unreliable or
unsatisfactory.
[45]
I have carefully considered each submission made on appeal relevant
to the criticisms of the evidence of the S204 witness,
and the
learned trial Judge’s acceptance thereof. In my view,
having carefully considered same against the record,
I cannot agree
in any respect in this regard.
[46]
In the result, in my view, the learned trial Judge’s approach
to this evidence was perfectly correct, she being entitled
to take
this into account and rely thereon to the extent that she did so.
[47]
This conclusion, against the proper approach to be taken on appeal as
set out above, is dispositive of First Appellant’s
appeal on
the merits. It is similarly so in respect of Second Appellant’s
appeal insofar as the argument relies on
the alleged inadequacy of
the evidence of the S204 witness.
SECOND
APPELLANT CONSPIRACY
[48]
It is important to recognize, and it was argued accordingly, that
Second Appellant was convicted only of conspiracy to commit
robbery.
[49]
It was argued on behalf of Second Appellant that even if accepting
the evidence of the S204 witness, this did not justify a
finding of
conspiracy to rob in respect of Second Appellant, the S204 witness
falling short of the necessary detail in this regard,
there being no
evidence that Second Appellant was otherwise involved.
[50]
I have carefully summarized above the S204 witness’s evidence
concerning the involvement of Second Appellant and his
motor vehicle,
as also phone calls relevant.
[51]
It is at all times clear that right from the first meeting on 24 May
2008 it was more than apparent that a robbery of the premises
of both
entities was doomed to failure due to the security measures in
place. It was clear from the evidence that all the
parties
accepted, and indeed planned, from at least that time forward, that
the robbery would have to be committed at a time that
the money was
in transit or at the sites as it was put.
[52]
In respect
of a conspiracy this may be express or tacit, but both require
agreement to have been reached as to the scheme to be
utilized,
although the exact manner in which the crime is to be committed is
not required to be agreed.
[21]
[53]
Immediately
agreement has been reached the crime of conspiracy is complete and it
is unnecessary to prove the commission of any
further act in the
execution of the conspiracy.
[22]
[54]
In this matter, it is clear that in respect of Second Appellant, the
evidence establishing this and that Second Appellant had
the
intention to conspire with those others intending to commit the
robbery or to assist in its commission this being a robbery
of a cash
vehicle in transit.
[55]
In my view, the argument put up for Second Appellant that what was
initially planned in his presence at most, if the S204 witness
is to
be believed, amounted to no more than an agreement to rob the
entity’s premises and not a in transit heist, falls at
the
first hurdle once the evidence of the S204 witness is carefully
analyzed.
[56]
In the result this argument falls also to be rejected.
CONCLUSION
[57]
Having carefully considered all the arguments put up for First and
Second Appellants, it is perfectly clear that on the appropriate
approach to appeals, and to the evidence in this matter, the findings
and conclusion of the trial Judge simply cannot be faulted.
[58]
In the result the appeals in respect of both First and Second
Appellants are dismissed.
__________________________
M.J.
LOWE
JUDGE
OF THE HIGH COURT
MAJIKI,
J
:
I
agree.
__________________________
B
MAJIKI
JUDGE
OF THE HIGH COURT
BEYLEVELD,
AJ
:
I
agree.
__________________________
A
BEYLEVELD
JUDGE
OF THE HIGH COURT (ACTING)
Obo
the First and Second Appellants
: Adv H J Potgieter
Instructed
by: H.J. Groenewald Attorneys Inc, PRETORIA
C/o
P Conjwa & Associates,
MOUNT
FRERE
Obo
the Respondent
: Adv N W Lamla
Instructed
by
: Director of Public Prosecutions
MTHATHA
[1]
2011 (1) SACR 87
(ECG) at paragraph [8]
[2]
S v
Mlumbi en ’n Ander
1991
(1) SACR 235 (A).
[3]
S v
Shilakwe
2012
(1) SACR 16
(SCA) at para [11].
[4]
2003 (1) SACR 134
(SCA) at para [15].
[5]
Section 208
of the
Criminal Procedure Act 51 of 1977
.
[6]
S v
Kubeka
1982
(1) SA 534 (W).
[7]
1981 (3) SA 172
(A) at 180 E – H.
[8]
2011
(2) SACR 164 (SCA)
[9]
S
v Sauls and Others
1981 (3) SA 172
at 179 G;
S
v Gentle
2005
(1) All SA 1
(SCA) at 5d-h.
[10]
S
v Ndzekeni
2014 JDR 2728 ECG
[11]
R
v Ncana
1948 (4) SA 399
at 405-6.
[12]
1975 (1) SA 227
(N) at 228.
[13]
2009 (2) SACR 216
(C) at para [8].
[14]
Also see
S
v M
2006
(1) SACR 135
(SCA) where, at para [189]
Cameron
JA, as
he then was, said:
“
The point is that
the totality of the evidence must be measured, not in isolation, but
by assessing properly whether in the light
of the inherent
strengths, weaknesses, probabilities and improbabilities on both
sides the balance weighs so heavily in favour
of the State that any
reasonable doubt about the accused’s guilt is excluded.”
[15]
[2015] C ZAECGHC 77 (13 August 2015).
[16]
Compare with
S
v T
2005 (2) SACR 318
(E) at para [37] where the court held:
“
The State is
required, when it tries a person for allegedly committing an
offence, to prove the guilt of the accused beyond a
reasonable
doubt. This high standard of proof - universally required in
civilized systems of criminal justice – is
a core component of
the fundamental right that every person enjoys under the
Constitution, and under the common law prior to
1994, to a fair
trial. It is not part of a charter for criminals and neither
is it a mere technicality. When a court
finds that the guilt
of an accused has not been proved beyond reasonable doubt, that
accused is entitled to an acquittal, even
if there may be suspicions
that he or she was, indeed, the perpetrator of the crime in
question. That is an inevitable
consequence of living in a
society in which freedom and the dignity of the individual are
properly protected and are respected.
The inverse –
convictions based on suspicion or speculation – is the
hallmark of tyrannical system of law.
South Africans have
bitter experience of such system and where it leads to.”
[17]
2001 (4) SA 1 (SCA)
[18]
Ibid
at
para [30]
[19]
2008 (2) SACR 76 (CC)
[20]
Supra
at
[51]
[21]
See
S v
Adams
1959
(1) SA 646.
[22]
S v
Sibuyi
1993 (1) SACR 235
(A) 249D – E.